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New rules for farmers “will help to protect the water environment”

New rules for farmers in England came into force last month

The rules are designed to prevent fertilisers and manure from seeping into watercourses

May 16th 2018

New rules for farmers came into force last month, designed to protect water quality and prevent soil erosion. The rules, which came into force on April 2nd 2018, apply to all farmers in England. The new rules were announced by the Government in a news story last November, which said that the rules would standardise good farming practices, help to protect the water environment, provide a new approach to regulation, and would also help farmers to save money through improved resource efficiency and resilience. [1]

In summary, the rules require farmers to match nutrients to crop and soil needs, and prevent fertilisers, manure, and soil from seeping into watercourses. The Government said the rules “were drawn up with farming and environment stakeholders to recognise and build on the good progress that a great many farmers have made in trying to tackle pollution.” The rules apply to farming and horticultural practices such as planting and harvesting; soil management, which includes ploughing and planting cover crops (“any crop with leaf cover that stops rain falling directly onto the soil”); using and storing manure or fertiliser; and managing livestock.

Assessing the risks of pollution

The Government has published guidance for farmers and landowners on what they must do “to manage manure, fertiliser, and soil to prevent runoff, erosion, and leaching.” [2] There are nine sets of rules. One is a general rule that requires farmers to assess the risks of pollution from the sorts of activities outlined above, taking into account a number of factors that can have an effect on soil erosion or increase the risk of runoff. The guidelines list five factors: distances to inland freshwaters, coastal waters, wetlands, springs, wells and boreholes; the angle of slopes; the presence and condition of land drains; the amount of ground cover; and the type of soil and its condition.

As for the other sets of rules, five are concerned with managing fertilisers and manures, two are concerned with managing soils, and one is concerned with managing livestock:

“The fertiliser rules require farmers to test their soils, then plan and apply their fertiliser or manure to improve soil nutrient levels and meet crop needs. They include minimum storage and spreading distances from water bodies. They also require the farmer to assess weather and soil conditions to reduce the risk of runoff and soil erosion. The remaining rules require farmers to manage livestock by protecting land within five metres of water and reducing livestock poaching [i.e., compacting soil by trampling]. In addition to these rules, farmers are encouraged to incorporate organic fertilisers into the soil within twelve hours of spreading to significantly reduce ammonia pollution.” [3]

Managing fertilisers and manure

The guidelines advise farmers to plan every application of fertiliser or manure, whether they are spread on the land surface, injected into the soil, or mixed with the soil surface layers. [4] Farmers are told to assess the pollution risks, as outlined above, assess the weather conditions and forecasts at the time of application, and match the quantity to crop or soil needs so that no more is used than is necessary. Farmers are also told to check the organic matter content and moisture level of the soil, and to check that their spreading equipment is calibrated and does not leak. Fertilisers or manure must not be used on waterlogged, flooded, or snow-covered soil, or on land where the soil has been frozen for more than 12 hours in the past 24 hours. Whenever they are applied, they should be worked into the soil within 12 hours or as soon as possible after the application.

An extra rule applies if fertilisers or manure are to be used on cultivated agricultural land, which is defined as land that has been ploughed, sowed or harvested at least once in the last year; or land that has received an application of manure or fertiliser at least once in the last three years. In this case, farmers must plan by using the results of a soil test, which must be no more than five years old at the time of application. The test results must show the pH and levels of nitrogen, phosphorus, magnesium, and potassium.

As for the proximity to watercourses, fertilisers must not be used within 2 metres of inland freshwaters, coastal waters, a spring, well or borehole; while manure must not be used or stored within 50 metres of a spring, well or borehole; or within 10 metres of inland freshwaters or coastal waters. The latter limit for applying manure is shortened to 6 metres if precision equipment is used. [5]

A further exception to the use of manure is where the land is managed for breeding wader birds or as a species-rich semi-natural grassland. In this case, manure (but not slurry or poultry manure) can be applied within 10 metres of inland freshwaters and coastal waters if the land is an SSSI (Site of Special Scientific Interest) or is the subject of an Environmental or Countryside Stewardship scheme. However, the manure should not be applied to the water surface, and should only be applied from 1st June to 31st October. There is also a limit to the amount that can be applied in any year, which is no more than 12.5 tonnes per hectare.

Managing soil and livestock

On soil management, as well as the soil test for cultivated agricultural land mentioned above, the guidelines advise farmers to take reasonable precautions to prevent soil loss caused by horticultural or farming activities: “soil loss can lead to erosion and allow pollutants to get into watercourses.” In particular, farmers are told to take reasonable precautions to reduce the risk of pollution when they carry out the following activities: creating farm tracks or gateways; establishing seedbeds, polytunnels or tramlines; cleaning out ditches; installing drainage or irrigation; irrigating crops; and spraying crops with pesticides, herbicides, or fungicides.

Examples of good practice are cited as: planting crops in early autumn and in dry conditions; planting headland rows and beds across the base of sloping land; under-sowing or sowing a cover crop to stabilise soil after harvest; breaking up compacted soil; and establishing grass buffer strips in valleys, along contours, slopes, field edges, and gateways.

A further set of rules are concerned with managing livestock to avoid pollution and soil erosion. Livestock feeders must not be placed within 10 metres of inland freshwaters or coastal waters; or within 50 metres of a spring, well or borehole. Farmers are also told to prevent livestock compacting soil by trampling it within 5 metres of inland freshwaters or coastal waters. As examples of good practice, the guidelines cite moving livestock to prevent soil compaction and soil erosion by riverbanks; putting up fences to keep animals away from watercourses; and wintering livestock on well-drained, level fields.

Inspections and enforcement

The guidelines state that the Environment Agency will be responsible for enforcing the new rules, and will do this through its farm inspections work. These inspections may include checking the distance restrictions; checking for soil erosion that affects a single area of more than 1 hectare; checking for soil compaction on a stretch of land, at least 2 metres wide and 20 metres long, next to an inland freshwater or coastal water; checking for signs of fertiliser use in restricted areas, including excessive vegetation growth on the margins of restricted areas; checking fertiliser records, including records on calibrating fertiliser equipment; checking soil test results; checking for evidence of pollution or for significant risks of pollution; and checking the types of crops that are being planted. If the Environment Agency discovers a breach of the rules, it will help farmers by identifying the changes that need to be made, and agreeing a timescale to make the necessary changes. The Environment Agency may follow this up with a return visit or ask for photographic evidence to check that the changes have been made.

New rules are welcomed by the Rivers Trust

Responding to the announcement of the new rules, the Rivers Trust said last December that “Defra’s new common-sense rules for farming will make a significant difference to the health of rivers.” Arlin Rickard, CEO of The Rivers Trust and Chair of the Catchment Based Approach National Support Group, said:

“We have been working closely with Defra and farmers on the ground to ensure these common-sense but important rules are easy to follow and are set out in a practical and intuitive way. They will provide a clear point of reference for farmers and help maintain healthy soils, crops and livestock as well as reduce diffuse pollution. They will also help farmers save money by using nutrients more efficiently. Our local Rivers Trusts together with the 100 plus Catchment Partnerships that cover England will be promoting the uptake of the rules through our extensive advisor and farmer networks.” [6]

In last year’s news story, the Government said:

“Farming rules for water are part of a whole package of measures to help farmers and land managers look after the environment. The Government is also investing £400 million through Countryside Stewardship schemes which support farmers in creating or restoring precious habitats, and a £12 million farm ammonia reduction grant has incentivised farmers to tackle agricultural emissions. The new rules will not only benefit farming businesses. Clean water helps tourism, fishing, and shellfish businesses to thrive, reduces the cost of treatment, and protects biodiversity. The Environment Agency will roll out the rules through an advice-led approach, working with farmers to meet the requirements before enforcement action is taken. Farmers and land managers will be able to determine what approach is best for their land, through methods such as deciding when it is safe to spread fertilisers.” [7]

Photograph:

Creative Commons Licence
Corvedale Cattle © Copyright Anthony Bloor and licensed for reuse under a Creative Commons Attribution-ShareAlike 4.0 International License. The new rules advise farmers to erect fences to keep cattle away from watercourses.

Notes

[1] The news story was published on 30th November 2017. See the GOV.UK web page “New Farming Rules for Water”.

[2] For Defra’s guidance on the new rules, see the GOV.UK web page “Rules for farmers and land managers to prevent water pollution”. The title of the relevant legislation is The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018.

[3] See [1].

[4] Manure is defined in the guidance as organic materials made from one or more animal, plant or human sources.

[5] The precision equipment is defined specifically in the guidelines as “a trailing hose or shoe band spreader; a shallow injector (no deeper than 10cm); or a dribble bar applicator.”

[6] For the Rivers Trust response, click here. Diffuse pollution refers to water pollution caused by manure, fertiliser or soil seeping into watercourses.

[7] See [2].

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The future for farming: UK Government publishes proposals for a post-Brexit agricultural policy

Defra proposes to replace the Common Agricultural Policy with a new system that “pays public money for public goods”

Environmental land management, “underpinned by natural capital principles,” will be the cornerstone of future agricultural policy in England

March 21st 2018

Following the publication of its 25 year plan for the environment, the UK Government is now seeking views on proposals for the development of a new agricultural policy. [1] The ten-week consultation period opened on 27th February and will close on 8th May 2018. On the GOV.UK website, Defra (the Department for the Environment, Food & Rural Affairs) says: “Leaving the European Union and the Common Agricultural Policy will give us the chance for reform. We want to know your thoughts on the future of agricultural policy in England.” [2] The proposals are set out in a consultation document titled Health and Harmony: the future for food, farming and the environment in a Green Brexit. Supplementary information includes an annex on stakeholder proposals, an annex on Countryside Stewardship options, and an evidence compendium, which provides “a detailed assessment of the current state of agriculture in the UK to underpin the proposals laid out in the consultation paper.” The evidence compendium contains detailed statistics on farm economics and accounts, food production, and environmental land management. [3]

“The case for change”

In his foreword to the consultation document, Michael Gove, Secretary of State for the Environment, says:

“For more than forty years, the EU’s Common Agricultural Policy (CAP) has decided how we farm our land, the food we grow and rear, and the state of the natural environment. Over that period, the environment has deteriorated, productivity has been held back, and public health has been compromised… The environmental damage we have suffered while inside the CAP has been significant. Soil health has deteriorated. Farmland bird numbers have dropped. Precious habitats have been eroded. And at the same time a system of subsidy skewed towards those with the biggest landholdings has kept land prices and rents high, prevented new talent coming into farming, and held back innovation.”

Chapter One of the document makes the case for change. It explains that the CAP involves three types of payments to farmers: Direct Payments, comprising a Young Farmers Scheme and a Basic Payment Scheme with a ‘greening’ component; price support for food producers; and rural development schemes which include agri-environmental measures. [4] Direct Payments have been reformed several times and were previously linked to production but are now largely based on the size of agricultural land that a farmer owns, as measured by the number of hectares. Defra says that of all the different types of farming, grazing livestock is the sector that is most dependent on Direct Payments, sheep farming in particular: “Those sectors in which a high proportion of farmers currently depend on Direct Payments just to break even are often located in the most remote, wild and beautiful parts of the UK… For example, the distinctive character of the Lake District landscape has been shaped through long association with sheep farming, one of the sectors currently most dependent on Direct Payments.”

The document concedes that the CAP has produced some environmental improvements, but it also says that the overall positive impact has been limited. In making the case for change, Defra says that the CAP has not been effective enough at reversing environmental damage caused by agricultural practices which have increased negative pressures on the environment through pollution and practices that have led to habitat and species loss. The Executive Summary (p.6) states:

“The CAP introduced some of the world’s first agri-environment schemes, making progress towards improving our environment. Significant reforms have helped to shift the CAP away from the ‘butter mountains’ and ‘wine lakes’ of the 1980s. Decoupling Direct Payments from production has reduced some of the incentives to produce in an environmentally-harmful way. Despite this, the CAP remains flawed. Even though we have some of the most innovative farmers in the world, land-based subsidies can undermine incentives for widespread productivity improvement and are bad value for taxpayers. Efforts to enhance our environment have also been limited by the bureaucratic structure of the CAP. It has imposed unnecessary regulatory burdens and failed to reward some public goods adequately, such as measures to improve water quality and soil health.”

A period of transition

About a third of the 64-page consultation document is taken up with the Common Agricultural Policy and its impact, and on the transitional arrangements that will come into place following the UK’s anticipated departure from the EU. In a section titled “Moving away from the Common Agricultural Policy in England,” there are chapters on “Reform within the CAP,” “An agricultural transition,” and “A successful future for farming.” Each chapter concludes with a number of questions for consultation. Chapter Four (“a successful future”) also includes sections on “Farming excellence and profitability,” “Agricultural technology and research,” and “Labour: a skilled workforce.”

In summary, the Government is proposing to continue with the Direct Payments system for a limited period in England, but will gradually reduce payments starting with those who receive the most under the current system. While reducing Direct Payments, it will also introduce a new system of payments based on environmental land management, which will replace the current Countryside Stewardship scheme. The current system of Direct Payments will eventually be phased out completely. The consultation is seeking views on how the phasing out of Direct Payments can best be achieved, and discusses several possibilities based on different financial arrangements, including the possibility that farmers may want to quit farming altogether. Meanwhile, the Government says it will maintain the current level of funding for agriculture across the whole of the UK until the end of the current parliament. The Executive Summary (p.7) states:

“We will formally leave the European Union in March 2019. The government anticipates that we will agree an implementation period for the whole country with the EU lasting for around another two years. Once we have the freedom to move away from the CAP, there will be an ‘agricultural transition’ period in England… In England, Direct Payments will continue during the agricultural transition… We want our future policy to provide an enabling environment for farmers to improve their productivity and add value to their products, so they can become more profitable and competitive. We therefore propose to further reduce and phase out Direct Payments in England completely by the end of the ‘agricultural transition’ period, which will last a number of years beyond the implementation period.”

Defra is proposing to make some changes to how the CAP is administered within the implementation period. Chapter Two of the document says that complying with the CAP regulations “presents a challenge to farmers and land managers, policy makers and delivery agencies. The administration of the Basic Payment scheme and Countryside Stewardship scheme can restrict access through complicated application systems and burdensome evidence requirements.” Defra is proposing to simplify the current system to make it easier for farmers to apply for Basic Payments and for Countryside Stewardship funds, and is seeking views on how this simplification can best be achieved. One question presents four options for simplification of the current arrangements under the CAP, and respondents are asked to indicate the three that are most appealing. A second question asks: “How can we improve the delivery of the current Countryside Stewardship scheme and increase uptake by farmers and land managers to help achieve valuable environmental outcomes?”

On the issue of Direct Payments, having discussed the possibilities based on different financial arrangements, the consultation document asks four questions, as follows:

• “What is the best way of applying reductions to Direct Payments?” Respondents are asked for their preference from three possibilities: a) applying progressive reductions, with higher percentage reductions applied to amounts in higher payment bands (respondents are also asked to provide views on the payment bands and percentage reductions that should be applied); b) applying a cap to the largest payments; and c) other.
• “What conditions should be attached to Direct Payments during the ‘agricultural transition’?” Respondents are asked to indicate their preferences from a list of four options.
• “What are the factors that should drive the profile for reducing Direct Payments during the ‘agricultural transition’?”
• “How long should the ‘agricultural transition’ period be?”

Research and innovation: Investing in skills and technology

Looking towards the future, the document stresses the need for farming to embrace new technology and invest in skills, which it says will enable farmers to be more competitive. Defra says “there is a huge opportunity for UK agriculture to improve its competitiveness – developing the next generation of food and farming technology, adopting the latest agronomic techniques, reducing the impact of pests and diseases, investing in skills and equipment, and collaborating with other farmers and processors.” The consultation document asks four questions on skills and capital investment:

• “How can we improve the take-up of knowledge and advice by farmers and land managers?” Respondents are asked to rank their top three preferences from a list of six options.
• “What are the main barriers to new capital investment that can boost profitability and improve animal and plant health on-farm?” Respondents are asked to rank their top three issues from a list of seven.
• “What are the most effective ways to support new entrants and encourage more young people into a career in farming and land management?”
• “Does existing tenancy law present barriers to new entrants, productivity and investment?”

On agricultural innovation, the document includes a case study of work at Harper Adams University in Shropshire where, in 2017, a team of researchers successfully grew a crop of barley “using only autonomous vehicles and drones and without a human setting foot in the field.” The case study reports: “The Hands Free Hectare project was a major step in revolutionising how we feed the world whilst helping to protect the environment. To limit damage to the soil for future harvests, and increase efficiency, the team employed a small modified tractor and combine equipped with cameras, sensors and GPS systems. Drones monitored the field, while a robot scout collected plant samples for inspection.”

The Government says it wants to pioneer new approaches to crop protection and encourage more commercial research to improve plant breeding and agronomic techniques: “New approaches, such as vertical farming, can harness the combined power of robotics, photonics, artificial intelligence and smart energy management systems, as well as plant biotechnology.” Respondents are asked three questions on research and innovation, as follows:

• “What are the priority research topics that industry and government should focus on to drive improvements in productivity and resource efficiency?” Respondents are asked to rank in order of importance the top three topics from a list of seven.
• “How can industry and government put farmers in the driving seat to ensure that agricultural R&D delivers what they need?” Respondents are asked to rank in order of importance the top three options from a list of five.
• “What are the main barriers to adopting new technology and ideas on-farm, and how can we overcome them?”

As well as new technology, the Government also stresses the need to invest in skills. Three questions seek the views of respondents on this topic:

• “What are the priority skills gaps across UK agriculture?” Respondents are asked to rank in order of importance the top three options from a list of seven.
• “What can industry do to help make agriculture and land management a great career choice?”
• “How can government support industry to build the resilience of the agricultural sector to meet labour demand?”

“Farming is crucial to achieving the goals of the 25 Year Environment Plan”

As for future agricultural policy, Defra says that the CAP will be replaced with a new system that “pays public money for public goods,” whilst the proposed system of environmental land management will be underpinned by natural capital principles (the term “underpinned” is used several times in the consultation paper). [5] The Executive Summary (p.8) states:

“From the end of the agricultural transition, a new environmental land management system will be the cornerstone of our agricultural policy in England. The system will help us to deliver our manifesto commitment to be the first generation to leave the environment in a better state than we inherited it. Farming is crucial to achieving the goals set out in our recently published 25 Year Environment Plan. A new environmental land management system will help us to preserve the investment in our countryside that has already been made and delivered by farmers. It will consist of a new scheme that pays providers for delivering environmentally beneficial outcomes, and will provide support for farmers and land managers as we move towards a more effective application of the ‘polluter pays’ principle. Our new environmental land management system will be underpinned by natural capital principles, so that the benefits the natural environment provides for people and wildlife are properly valued and used to inform decisions on future land management. The new system aims to deliver benefits such as improved air, water and soil quality; increased biodiversity; climate change mitigation and adaptation; and cultural benefits that improve our mental and physical well-being, while protecting our historic environment.”

Implementing the new policy

The rest of the document is titled “Implementing our new agricultural policy in England,” with a further section titled “The framework for our new agricultural policy.” There are eight chapters on implementing the new policy, under the following headings:

• Public money for public goods;
• Enhancing our environment;
• Fulfilling our responsibility to animals;
• Supporting rural communities and remote farming;
• Changing regulatory culture;
• Risk management and resilience;
• Protecting crop, tree, plant and bee health; and
• Ensuring fairness in the supply chain.

The Government’s aspirations for the future of farming are summarised in the Executive Summary (p.6):

“We will incentivise methods of farming that create new habitats for wildlife, increase biodiversity, reduce flood risk, better mitigate climate change, and improve air quality by reducing agricultural emissions. We will achieve this by ensuring that public money is spent on public goods, such as restoring peat bog and measures which sequester carbon from the atmosphere; protecting dry stone walls and other iconic aspects of our heritage; and reducing disease through new initiatives that better monitor animal health and welfare.”

“Public money for public goods”

Chapter Five describes the sort of public goods that the future policy will support. These are: environmental improvements and protection; better animal and plant health and better animal welfare; improvements to productivity and competitiveness; “preserving rural resilience, traditional farming and landscapes in the uplands;” and enhancements to public access to the countryside. With future generations in mind, the document says that protecting and enhancing the environment “could be considered the pre-eminent public good.” The Government wants to see improvements to soil health through better land management practices; improvements to water quality; better air quality, with the emphasis on reducing ammonia emissions [6]; increased biodiversity; climate change mitigation [7]; and “enhanced beauty, heritage, and engagement with the natural environment.” Respondents to the consultation are asked to rank in order of importance their top three of these six environmental outcomes.

The Government also wants to set high standards for animal health and welfare, and improvements in biosecurity to protect “crops, trees, plants and bees.” On improvements to productivity, the document stresses again the importance of innovation. Defra says that innovations – “such as technology, data science, gene-editing, improved tracking and traceability of livestock, or new plant biosecurity measures” – can increase productivity, help to safeguard the public goods of animal and human health, and “ensure we better protect the environment.”

Hill farming is singled out as needing particular support under the new regime, as it is the sector that is most dependent on Direct Payments under the current system. The Executive Summary (pp.7-8) states:

“We recognise that some sectors may find it more difficult than others to adapt – for example, those located in the most remote, wild and beautiful parts of England. We recognise the environmental and cultural value of our rural landscapes and traditional ways of life, including areas such as the uplands. The uplands have the potential to benefit from new environmental land management schemes, given the nature of their landscapes and the many public goods that they deliver, such as biodiversity, flood risk mitigation, and carbon sequestration. We will explore possible options on how we can best support such areas.”

Respondents to the consultation are asked to rank in order of importance their top three public goods that the Government should support. There are six options: world-class animal welfare; high animal health standards; protection of crops etc.; improved productivity; the preservation of upland landscapes; and public access to the countryside. Respondents are also asked if there are any other public goods that the Government should support.

Environmental outcomes

Chapter Six (“Enhancing our environment”) provides more detail of what a new environmental land management system could involve: “A new environmental land management system, underpinned by natural capital principles, would contribute to delivering against many of the key outcomes set out in the 25 Year Environment Plan and the Clean Growth Strategy. These include: clean air; clean and plentiful water; thriving plants and wildlife; reduced risk of harm from environmental hazards such as flooding and drought; using resources from nature more sustainably and efficiently; enhanced beauty, heritage and engagement with the natural environment; and mitigating and adapting to climate change.” The document says that a new environmental land management system could involve some or all of the following: new environmental land management schemes, such as support for wetland creation, woodland creation, or peatland restoration; funding for collaborative projects; capital grants; a ‘user friendly’ design to improve administration of the scheme; and innovative funding and support mechanisms.

Several case studies are presented which illustrate the sort of environmental improvements that have already been achieved under the current system [8], and the chapter concludes with further questions for consultation. The first question lists eleven outcomes (such as species recovery, soil quality, and cultural heritage), and asks respondents to select which outcomes “would be best achieved by incentivising action across a number of farms or other land parcels in a future environmental land management system.” Three further questions are as follows:

• “What role should outcome-based payments have in a new environmental land management system?”
• “How can an approach to a new environmental land management system be developed that balances national and local priorities for environmental outcomes?”
• “How can farmers and land managers work together or with third parties to deliver environmental outcomes?”

Animal welfare and animal health

Chapter Seven of the document, titled “Fulfilling our responsibility to animals,” is devoted to animal health and welfare. Defra says that the UK has led the way “in making significant welfare advances by banning the use of close confinement sow stalls for pigs and the use of veal crates back in the 1990s. In addition to our plans to make CCTV in slaughterhouses in England compulsory, we also propose to take early steps to control the export of live animals for slaughter as we leave the EU.” The consultation document says that animal welfare is one of the public goods that the Government could support in the future:

“During the agricultural transition, we could pilot schemes that offer targeted payments to farmers who deliver higher welfare outcomes in sectors where animal welfare largely remains at the legislative minimum. Payments could also be made to farmers who trial a new approach or technology which could improve welfare outcomes but which is not an industry standard.”

On animal health, the Government is proposing to work with industry “to develop an ambitious plan to tackle endemic disease and drive up animal health standards. A clear vision and programme of partnership action will help us to tackle non-statutory endemic disease and health conditions in the form of an Animal Health Pathway.” A further proposal is to provide targeted support for priority disease control and health schemes, “learning lessons from the Bovine TB programme in England and schemes elsewhere in the UK and overseas.” Respondents are asked three questions on the topic of animal welfare and animal health:

• “Should government set further standards to ensure greater consistency and understanding of welfare information at the point of purchase?” Respondents are asked to indicate a single preference from five options.
• “What type of action do you feel is most likely to have the biggest impact on improving animal health on farms?” Respondents are asked to rank three out of ten choices in order of importance.
• “How can the government best support industry to develop an ambitious plan to tackle endemic diseases and drive up animal health standards?”

Hill farming and rural businesses

As mentioned above, hill farming is singled out as needing particular support under the new regime, as it is the sector that is most dependent on Direct Payments under the current system. Chapter Eight of the document says that places like the Lake District, now a World Heritage Site, represent a significant part of our heritage, “bringing a wealth of environmental, archaeological and recreational value.” The particular problems faced by hill farmers are explained as follows:

“Since 1975, hill farming has traditionally been supported through financial payments to Less Favoured Areas. In England, Less Favoured Areas are divided into two groups, with the more challenging areas classified as Severely Disadvantaged Areas. These tend to be upland areas. The majority of farms in Severely Disadvantaged Areas (but not all) are grazing livestock businesses with sheep or cattle, although dairy farms and forestry are also important in some areas. Farming activity in these areas is more restricted than in lowland areas due to poor soil fertility and steep hill slopes. Heather moorland dominates the landscape, which is of poor nutritional value to livestock, requiring a larger area of land to produce the same amount of livestock than lowland areas. These limitations mean most upland farms have fewer opportunities to improve their productivity than lowland farms. Compared to lowland farms, farms within the Severely Disadvantaged Areas have less opportunity to diversify. Where they have diversified, they have a lower income from diversified enterprises. Agri-environment schemes also tend to make a greater contribution to average income than lowland farms.”

Defra says that many upland areas have the potential to benefit from new environmental land management schemes, and can encourage biodiversity, protect water quality, and store carbon. Producing high-quality food and diversification into areas such as energy generation, tourism, or commercial forestry, are mentioned as the sort of opportunities that leaving the EU could provide. However, “we recognise that these will be defined by the surrounding landscape and by investment potential.” The Government says that a clear vision for the uplands will be an important part of its agricultural policy, “and we want to explore what this should be.” The Government also says it wants to support rural businesses by measures, for example, to improve broadband connectivity which, in agriculture, “can support precision farming, including environmental sensing systems.” Respondents are asked three questions on upland areas and rural businesses:

• “How should farming, land management, and rural communities continue to be supported to deliver environmental, social, and cultural benefits in the uplands?”
• “There are a number of challenges facing rural communities and businesses. Please rank your top three options by order of importance.” The eight options include broadband connectivity, affordable housing, and transport connectivity.
• “With reference to the way you have ranked your answer to the previous question, what should government do to address the challenges faced by rural communities and businesses post-Brexit?”

“Changing regulatory culture”

Defra says that farmers are currently required to comply with a broad range of legislation, covering environmental protection and animal health and welfare. The range includes rules that prevent the over-abstraction of water sources and animal traceability requirements designed to prevent the spread of disease. However, Defra also says that the current system puts excessive burdens on farmers and can be very rigid in its application. For instance, it says that an incomplete record or the loss of one cattle ear tag can sometimes lead to substantial reductions in payments. As part of a future agricultural policy, Defra says it wants to make regulation less disproportionately punitive and rigid, without relaxing standards:

“There is scope to raise regulatory standards in some areas to maintain and enhance standards. In others, we can look at moving away from disproportionate enforcement that can heavily penalise some farmers for minor errors. We will enable a new regulatory culture in which standards are upheld and their enforcement is less disproportionately punitive and rigid in its application, without weakening our standards. We have considered various inspection and enforcement methods, which could include greater use of remote sensing and risk-based inspection, and advice courses and civil sanctions to enforce regulations.”

The Government says it will be conducting a comprehensive review of the current inspections regime, which will investigate “how inspections can be removed, reduced or improved to lessen the burden on farmers while maintaining and enhancing our animal, environmental, and plant health standards.” Respondents to the consultation are asked three questions on regulation:

• “How can we improve inspections for environmental, animal health, and welfare standards?” Respondents are asked to indicate their preferred options from a list of six.
• “Which parts of the regulatory baseline could be improved, and how?”
• “How can we deliver a more targeted and proportionate enforcement system?”

“Risk management and resilience”

Three chapters of the consultation document deal in turn with risk management; protecting crop, tree, plant and bee health; and ensuring fairness in the supply chain. On risk management and resilience, Defra says that “the best way of improving resilience in the farming sector is to support increases in farm productivity. Profitable farms are more resilient with readier access to capital. Our immediate focus, therefore, will be on improving productivity and profitability so farm businesses can be more self-reliant and invest for the lean years as other sectors do.” However, it also says that fewer than one in five farmers currently buy agricultural insurance. The Government says it is reluctant to subsidise the cost of risk-management products as this can distort the market. Instead, it recommends buying into innovative new commercial products such as a form of insurance known as index insurance, which “differs from standard insurance by triggering payouts based on an agreed-upon index or measurement being met, rather than by actual losses suffered by the insured party. Index insurances typically require less farm-specific data than other insurances and so are easier to administer.” Respondents are asked three questions on this topic:

• “What factors most affect farm businesses’ decisions on whether to buy agricultural insurance?” Respondents are asked to rank in order of importance their top three options from a list of seven.
• “What additional skills, data and tools would help better manage volatility in agricultural production and revenues for (a) farm businesses and (b) insurance providers?”
• “How can current arrangements for managing market crises and providing crisis support be improved?”

“Protecting crop, tree, plant, and bee health”

Defra says that farmers must be able to protect their crops whilst people must be protected from the risks posed by pesticides, both to themselves and the environment. As part of a future agricultural policy, the Government is proposing an “integrated pest management” approach:

“Strong regulation of pesticides is essential to limit the risks, but this should be supplemented by integrated pest management. This means using all the available tools to protect crops, with the least possible use of pesticides. Steps that can be taken include crop rotation, the use of biopesticides, and encouraging natural predators. There is the potential for the greater use of plant breeding techniques and making better use of genetics and the resources held in gene banks to ensure their natural resilience to pests and diseases. By making integrated pest management central to our approach to crop protection, the government can encourage wider investment in research and development.”

Respondents are asked for their views on three questions:

• “Where there are insufficient commercial drivers, how far do you agree or disagree that government should play a role in supporting: a) industry, woodland owners and others to respond collaboratively and swiftly to outbreaks of priority pests and diseases in trees; b) landscape recovery following pest and disease outbreaks, and the development of more resilient trees; and c) the development of a biosecure supply chain across the forestry, horticulture and beekeeping sectors.”
• “Where there are insufficient commercial drivers, what role should government play in: a) supporting industry, woodland owners and others to respond collaboratively and swiftly to outbreaks of priority pests and diseases in trees; and b) promoting landscape recovery following pest and disease outbreaks, and the development of more resilient trees.”
• “What support, if any, can the government offer to promote the development of a biosecure supply chain across the forestry, horticulture and beekeeping sectors?”

“Ensuring fairness in the supply chain”

Defra says that most farmers are comparatively small-scale sellers who deal with a smaller number of comparatively large-scale processors and retailers. It recommends that farmers come together in the form of agricultural cooperatives: collaborative organisation, it says, will enable them to access new markets and reduce risks, and also provide them with more bargaining power:

“In some sectors, farmers can give themselves greater power to negotiate contracts and market their produce by coming together in Producer Organisations. We propose to maintain the special status of Producer Organisations, including derogations from competition rules. Collective decision-making is not the traditional model for UK farmers, but the modern supply chain means attitudes have to change. Farmers could benefit from recognising how much more strength they can achieve through cooperation.”

Respondents are asked for their views on three questions concerning collaboration and the food supply chain:

• “How can we improve transparency and relationships across the food supply chain?” Respondents are asked to rank in order of importance their top three options from a list of four. The options include the promotion of Producer Organisations, the introduction of statutory codes of conduct, and improvements to the provision of data.
• “What are the biggest barriers to collaboration amongst farmers?”
• “What are the most important benefits that collaboration between farmers and other parts of the supply chain can bring? How could government help to enable this?”

Devolved government and a common framework

The final section of the consultation document is titled “The framework for our new agricultural policy.” There are three chapters that deal in turn with devolution, international trade, and a proposal to present parliament with an Agriculture Bill. Because of devolved powers, the new agricultural policy will only apply to England. In the Executive Summary, however, the consultation document says that the Government’s vision of the future for agriculture is a vision that could work for the whole of the UK, “but we recognise that devolution provides each administration with the powers to decide its own priorities.” For instance, on the phasing out of Direct Payments in England and its gradual replacement with funding for environmental land management schemes, Defra says that the devolved administrations will have the flexibility to target support in a way that best suits their circumstances. This raises the question of how much flexibility will the devolved powers have, and whether England will end up with a completely different system of rules and regulations for agriculture compared to the rest of the UK. This issue is discussed in Chapter Thirteen, titled “Devolution: maintaining cohesion and flexibility,” which recognises the need for some sort of common framework across the UK. It states:

“Leaving the European Union will be an important step in the devolution of agriculture. Under the existing constitutional settlements, agriculture is devolved in Scotland, Wales and Northern Ireland. However, many of the rules in these areas are currently set at the EU level, although some discretion is allowed in Direct Payments to farmers; and each administration has a rural development programme that they deliver (such as agri-environment schemes and rural economic growth). The devolved administrations and the UK government are working together to determine where common frameworks need to be established in some areas that are currently governed by EU law, but are otherwise within areas of competence of the devolved administrations or legislatures (as agreed by the Joint Ministerial Committee (EU Negotiations)).”

Defra says that the Joint Ministerial Committee for EU Negotiations has agreed three principles regarding common frameworks. The first is that common frameworks will be established where they are necessary (for instance, among other reasons, in order to ensure compliance with international obligations). The second is that “frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures.” The third is that “frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland and that Northern Ireland will be the only part of the UK that shares a land frontier with the EU. They will also adhere to the Belfast (Good Friday) Agreement.”

Respondents are asked for their views on two questions regarding devolution. The first asks, “With reference to the principles set out above, what are the agriculture and land management policy areas where a common approach across the UK is necessary?” The second asks: “What are the likely impacts on cross-border farms if each administration can tailor its own agriculture and land management policy?” The discussion of common frameworks suggests that “cross-border farms” means farms that straddle the borders between England and Wales or between England and Scotland. The problems that might arise for farms that straddle the border between the North and South of Ireland are not discussed.

International trade following Brexit

Chapter Fourteen discusses the opportunities for new trade agreements post-Brexit and the kinds of agreements that could be negotiated. Defra says that the EU is the UK’s biggest trading partner for agricultural products, “so our future relationship with the EU 27 is of vital importance.” The chapter continues:

“The government is committed to securing a deep and special partnership with the EU, including a bold and ambitious economic partnership. The UK wants to secure the freest trade possible in goods and services between the UK and the EU. Ensuring as frictionless trade as possible for our agricultural sectors is particularly important where much of the produce is perishable and time is critical. The government is committed to securing continuity in the effect of existing EU Free Trade Agreements and other EU preferential arrangements. Through membership of the EU, the UK is currently party to around 40 international trade agreements covering over 65 countries… In the future, the UK will be in a position to independently exercise its existing rights as a World Trade Organization (WTO) member and will continue to be subject to the full obligations of WTO membership. WTO agreements could represent a framework for our future agriculture policy.”

The chapter concludes with three questions for respondents:

• “How far do you agree or disagree with the broad priorities set out in the trade chapter?”
• “How can government and industry work together to open up new markets?”
• “How can we best protect and promote our brand, remaining global leaders in environmental protection, food safety, and in standards of production and animal welfare?”

An Agriculture Bill

The document concludes with the proposal to introduce an Agriculture Bill which will signal the UK’s departure from the Common Agricultural Policy. Chapter Fifteen says that the Agriculture Bill will be designed to meet the policy ambition set out in the consultation paper and could provide the Government with the legislative power to do any of the following:

1.) To continue making payments to farmers and land managers, with the power to amend eligibility criteria for payments.
2.) To strip out unnecessary bureaucracy and strengthen the delivery landscape.
3.) To create new schemes for one or more of the following purposes:
• promoting and increasing agricultural productivity and resilience
• preserving, protecting, and enhancing the environment
• providing support to rural communities
• animal and plant health and animal welfare
• public access
4.) To establish a new basic compliance or inspection regime.
5.) To take emergency measures to provide aid in extreme events.
6.) To retain UK-wide frameworks where we need commonality.
7.) To provide for continuity during the ‘agricultural transition’ period for some elements of the current CAP.

The final two questions in the consultation are concerned with the proposed legislation: 1) “How far do you agree with the proposed powers of the Agriculture Bill?” and 2) “What other measures might we need in the Agriculture Bill to achieve our objectives?”

The conclusion of the Executive Summary states: “We should all have an interest in the landscape around us: it must sustain us now and be held in trust for future generations. We welcome all views on our policy proposals.” Respondents have until the 8th of May 2018 to submit their views.

Acknowledgement

Photograph: Pasture, Skelton, with Carrock Fell in the background. Near Low Braithwaite, Cumbria. © Copyright Andrew Smith and licensed for reuse under this Creative Commons Licence. Health and Harmony: the future for food, farming and the environment in a Green Brexit says that “the distinctive character of the Lake District landscape has been shaped through long association with sheep farming, one of the sectors currently most dependent on Direct Payments.” The Government says that hill farmers and upland areas have the potential to benefit from new environmental land management schemes under the proposed agricultural policy for England.

Notes

[1] The plan was published on the 11th January 2018. See the ENA article: “UK Government publishes its 25 year plan for the environment”. The 25 year plan only applies to England.

[2] See the GOV.UK web page “The future for food, farming and the environment”.

[3] Health and Harmony: the future for food, farming and the environment in a Green Brexit is a PDF document available from the GOV.UK website which you can download by clicking here. The Future Farming and Environment Evidence Compendium is another PDF document which you can download from the GOV.UK website by clicking here. The annex on stakeholder proposals and the annex on Countryside Stewardship options are both available from [2] above. Note: Quotations from the consultation document have been slightly modified in certain places to correct grammatical errors in the original.

[4] Agri-environment schemes are now known as environmental land management schemes. The current environmental land management scheme is the Countryside Stewardship scheme. Defra says the Countryside Stewardship scheme supports a range of environmental benefits, including: slowing the decline in wildlife populations; tree planting; improving water quality; and providing more high-quality recreational opportunities. In conceding that the CAP has made some environmental improvements, Defra says “there is evidence that land in publicly funded agri-environment schemes can deliver benefits which outweigh the payments made.” The successes delivered by agri-environment schemes in England over the last five years include: “280,000km of maintenance, management and restoration of hedgerows, ditches and stonewalls; creating nesting and food resources to increase breeding populations of nationally scarce farmland birds and pollinators such as cirl buntings, stone curlews, and the marsh fritillary butterfly; and 19,000 hectares of planted areas providing pollen and nectar sources for pollinators (Higher Level Scheme management for pollinators can significantly increase the size of wild bumblebee populations).” In addition, a footnote says that a 2012 study on farmland bird population growth rates showed positive effects related to the management of winter food resources for a number of seed-eating species. The consultation document also includes a case study on the Hedgerows and Boundaries Grant, which is “a standalone scheme under Countryside Stewardship and is a popular approach with farmers and stakeholders. Applicants select from a range of investments such as hedgerow laying, coppicing, and restoration of dry stone walls. They create habitat and feeding areas for birds, insects and small mammals, as well as adding to the character of the local landscape. These works can have a lasting legacy for our countryside. This simple grant offer is competitive, but the scoring is easy to follow and has been agreed with stakeholders. In 2016, the first year of the grant, we funded 728 agreements with a value of £3 million. This resulted in the restoration of 45,897m of stone walls and 177,539m of hedges.”

[5] On the concept of natural capital, see the ENA article: “Assessing the Value of ‘Natural Capital'”.

[6] The consultation document states: “When ammonia is released into the air, it reacts with nitrogen oxides and sulphur dioxide and forms secondary particulate matter, which has a significant impact on human health. Most notably, ammonia contributes to smog in urban areas. In addition, when deposited on land, ammonia can cause acidification or overload soils and watercourses with nitrogen, leading to biodiversity loss in sensitive habitats.” Evidence cited in the accompanying Future Farming and Environment Evidence Compendium suggests that ammonia emissions attributable to farming constitute 83% of the UK total. In Chapter Six of the consultation paper (“Enhancing our environment”), Defra says that “we can reduce the harmful contribution agriculture makes to ammonia emissions and air quality through, for instance, encouraging the use of low emission slurry spreading equipment or supporting investment in slurry covers.” For recent research on the impact of air pollution on human health, see the ENA article: “Recent Research – The impact of air pollution on human health”.

[7] The consultation document states: “Nitrous oxide and methane greenhouse gas emissions from agriculture have fallen by around 15% since 1990, and agriculture currently contributes 10% of UK emissions. Whilst it remains incredibly important that we continue to reduce carbon emissions from the farming sector, environmental land management could play a pivotal role in responding to climate change by increasing the ability of farmland and the countryside to sequester carbon, thereby enhancing the benefits and value of our natural resources.” In Chapter Six of the consultation paper (“Enhancing our environment”), Defra says that incentivising practices that involve carbon sequestration and greenhouse gas reduction would help to tackle climate change and also improve biodiversity: “This could be achieved through support for landscape scale restoration projects, hedgerow creation and habitat management, and by continuing to support woodlands and forestry.”

[8] The case studies include tree planting and other measures to improve soil health in Nottinghamshire; selective planting to support ground-nesting farmland birds and pollinating insects in West Norfolk; wet grassland restoration in Devon; an innovative slurry-spreading system that reduces ammonia emissions in Suffolk; peat restoration in Cumbria; the creation of a new ‘National Forest’ in the Midlands; and the protection of the small-scale industrial remains of a lead mine and lime kiln in Lancashire. For the details, see pp.38-41 of the consultation document (note [3] above). See also note [4] above.

Environmental campaigners win an important victory for access to justice

High Court says changes to cost rules in environmental court cases must be amended

And UN report says UK is “further away” from compliance with Aarhus Convention

October 13th 2017

Environmental campaigners won important concessions at the High Court last month concerning changes to the rules that govern environmental court cases, such as a legal challenge to a public body’s environmental policy. As we discussed in a previous article, the UK Government announced the changes last November and the new rules were introduced in February – see the concluding section ‘Moving the Goalposts: Limiting access to justice’ in ‘Future of EU Nature Directives still uncertain following appointment of new Environment Secretary’. The previous rules, which had been in force since April 2013, set a cap on the costs that a claimant would be liable to pay if they lost a legal challenge in an environmental court case. The costs were set at £5,000 for individuals and £10,000 for charities and non-governmental organisations; the defendant’s costs were also capped at £35,000. [1] The changes to the rules retain these figures as a “default” cap on costs. However, the changes also give judges the ability to increase or decrease the cap on costs at any time during a case, making the costs of mounting a legal challenge uncertain. Claimants bringing environmental cases to court are also obliged to provide more information on their financial circumstances, which could be disclosed to the court. [2]

These changes were challenged by the law firm Leigh Day, acting on behalf of a partnership of three organisations: the RSPB, Friends of the Earth, and environmental lawyers Client Earth. At an initial hearing at the High Court on Wednesday 19th July, David Wolfe QC, representing the three organisations, argued that the new rules did not follow the spirit of the Aarhus Convention, a UN agreement which the UK has signed and is designed to ensure access to justice for environmental cases. Client Earth said: “The UK government must ensure environmental cases are not prohibitively expensive and they must remove or reduce financial and other barriers to access to justice.” [3]

The Aarhus Convention

The full title of what is commonly referred to as the Aarhus Convention is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It was formulated by the United Nations Economic Commission for Europe (UNECE) and adopted at a ministerial conference in June 1998, entering into force in October 2001. The objective of the Convention is stated in Article 1, which says: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party [to the Convention] shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.” [4] The provisions of the Convention cover those three broad areas: access to environmental information; public participation in environmental decision-making; and access to environmental justice.

The right of access to environmental information

On the first (access to environmental information), Article 4 of the Convention gives people the right to receive environmental information held by public authorities. The definition of “environmental information” is itself broad (the definitions are set out in Article 2), and includes information not only on environmental policies or the state of the environment but also on things such as the state of cultural sites and built structures, “inasmuch as they are or may be affected by the state of the elements of the environment” or, through these elements, by factors such as legislation, programmes, or development projects. Public bodies are also obliged to collect and disseminate environmental information, as stipulated in Article 5 of the Convention. [5]

The right to participate in environmental decision-making

On the second (public participation in environmental decision-making), Articles 6, 7 and 8 of the Convention gives everyone the right to participate in environmental decision-making, which include the “preparation of legally binding instruments”. Public authorities must make arrangements to enable non-governmental organisations and the general public to comment on proposals for plans, programmes and projects relating to or affecting the environment, and must take these comments into account in their decision-making. They must also provide information on their final decisions and their reasons.

Access to justice in environmental matters

On the third (access to environmental justice), Article 9 of the Convention gives people the right to challenge decisions made by public bodies when those decisions have not respected the two previous rights or have contravened environmental law in general. Paragraph 1 covers the right of access to a review procedure when requests for information under Article 4 have been denied. Paragraph 2 covers a similar right for those “members of the public concerned” who have a sufficient interest, or alternatively who maintain an impairment of a right, to challenge the legality of a decision (where the “public concerned” is defined as people affected by or likely to be affected by an environmental decision, or people having an interest in such a decision, including non-governmental organisations that promote environmental protection). Paragraph 3 gives members of the public the right of access “to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

The reduction of “financial and other barriers to access to justice”

Paragraphs 4 and 5 of Article 9 are those aspects of the Convention that have featured prominently in the legal challenge. Paragraph 4 includes the statement that the procedures referred to in the previous paragraphs “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive” [6] And Paragraph 5 says: “In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”

Environmental campaigners said that the changes to the cost capping rules, introduced in February, bring uncertainty to the costs of making a legal challenge and will deter claimants pursuing a genuine case, which is contrary to Article 9 of the Aarhus Convention.

House of Lords Scrutiny Committee criticises the rule changes

The legislation that implemented the changes – the Civil Procedure (Amendment) Rules 2017 (SI 2017/95) – was scrutinised by the Secondary Legislation Scrutiny Committee of the House of Lords, which published a report of its findings on 23rd February. [7] A consultation on the changes was held towards the end of 2015. [8] The Committee’s report considers the response to this consultation submitted jointly by the RSPB, Friends of the Earth and Client Earth, and also considers the paperwork accompanying the legislation which the Ministry of Justice provided to explain the changes. Two significant observations emerge. Firstly, the report describes the Government’s intention to discourage “unmeritorious claims which cause unreasonable costs and delays to development projects.” However, the joint submission notes a failure of the Ministry of Justice to provide any evidence that the number of “unmeritorious claims” is a problem. The report continues:

“It provides data which shows that the number of Aarhus cases in 2014–15 was 153 which is on a par with the established average. They also comment that between April 2013 and March 2015, nearly half (an average of 48%) of environmental cases were granted permission to proceed in contrast with 16% of ordinary judicial review cases. Over the same period 24% of the environmental cases were successful for the claimant in contrast with 2% for all cases in 2014. All of which indicates, according to the submission, that environmental cases represent good value for money in comparison with mainstream judicial review cases.”

The second observation concerns the Government’s stated intention of “introducing more of a level playing field so that defendants are not unduly discouraged from challenging a claimant’s entitlement to costs protection.” However, the submission points out that the cap on costs affects only the claimant’s liability to pay the defendant’s costs, while the claimant’s own legal costs are not included. The report says that the Government’s stated intention “may escalate the claimant’s legal costs and act against the intention of the Aarhus Convention that the costs of environmental litigation should not be prohibitive.”

The report concludes that the Ministry of Justice “has not provided a convincing case for changing from the previous standardised system of cost capping, which was well understood, to this more complex system which appears to have significant potential to increase both the costs for public administration and the uncapped litigation costs of the claimant.” It continues:

“While asserting that the changes are to ‘discourage unmeritorious claims’, no figures are presented that illustrate the proportion of Aarhus claims that fall into that category. We are told that the financial impact on the public sector is minimal, so there does not appear to be a significant saving to the tax payer from these changes. Although the Ministry of Justice states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to the consultation and the submission[s] received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts. The Ministry of Justice has not addressed any of these concerns in its paperwork and we therefore draw the matter to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation. We have also written to the Minister to express our concerns over the way that this policy change was presented.”

UN Report: UK has moved “further away” from compliance with the Aarhus Convention

The Government’s changes received another blow on the 28th July when the United Nations Economic Commission for Europe (UNECE) published a report concerning the UK’s compliance with its obligations under the Aarhus Convention, to be submitted to a meeting of the parties to the Convention in September (11th to 13th). The report summarises the findings of the Aarhus Convention Compliance Committee (ACCC), which notes a lack of progress on the part of the UK in meeting its obligations under Article 9 of the Convention. It makes a specific reference to the changes to the cost capping rules, saying that while the 2017 amendments introduced some positive improvements, overall they appear to have moved the UK “further away” from meeting the requirements of the Convention. [9]

The report requests the UK, as a matter of urgency, to take the necessary measures “to ensure that the allocation of costs in all court procedures subject to Article 9 is fair and equitable and not prohibitively expensive.” It also calls on the UK to “further consider the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice” and “to establish a clear, transparent and consistent framework to implement Article 9, Paragraph 4, of the Convention.” Additional requests include a review of the time scale for bringing judicial review applications in Northern Ireland, and a request to “ensure that in future plans and programmes similar in nature to national renewable energy action plans are submitted to public participation as required by Article 7, in conjunction with the relevant paragraphs of Article 6 of the Convention.” The report also recommends that the UK “ensure that its Civil Procedure Rules regarding costs are applied by its courts so as to ensure compliance with the Convention.”

The Verdict of the High Court

On September 15th, the High Court delivered its verdict on the challenge to the new rules. Introducing the grounds for the challenge, Justice Dove prefaced his comments by describing the provisions of the Aarhus Convention and explaining that the Convention “is an unincorporated International Convention which has no direct effect in domestic law. Legal effect is however conferred upon the treaty to the extent that it has found expression in EU environmental legislation.” [10] Article 6 of the Convention (“public participation in environmental decision-making”) is contained within the EU Environmental Impact Assessment under the EU Directive 2011/92/EU, he said. He went on to explain that “provisions in relation to access to justice are contained both within the Environmental Impact Assessment Directive and the Industrial Emissions Directive in similar terms.” He then quoted Article 11 of the EU Environmental Impact Assessment Directive which essentially transposes extracts from Article 9 of the Aarhus Convention, including the statement on prohibitive costs (Paragraph 4), into EU law.

He then went on to explain that the new cost rules put in place a series of bespoke provisions “designed to give effect to the requirements of the Directives”. However, he continued, the EU Directives only cover those claims that are related to Article 9 Paragraph 1 or Article 9 Paragraph 2 of the Aarhus Convention. This means in fact that the extent of the costs protection under the new rules exceeds that which is required by EU law, because they include judicial review claims that fall within the scope of Article 9 Paragraph 3 of the Aarhus Convention. Justice Dove then described the grounds for the legal challenge, as follows:

“There are three Grounds raised by the claimants. The first Ground is that the provisions of the rules which enable a variation of the costs limits at any point in the litigation are in breach of the requirements of EU law as set out above. The second Ground is that it is unlawful for the 2017 Amendments to fail to provide for private hearings when a claimant or a third party supporter’s financial details may be discussed and examined at such a hearing. The third Ground is that the claimants seek a declaration that in the light of the CJEU jurisprudence [i.e. European Court of Justice case law] the claimant’s own costs of bringing the litigation should necessarily be included within the assessment of the financial resources of the claimant for the purposes of evaluating whether or not costs protection should be afforded and whether or not the proceedings are ‘prohibitively expensive’.” [Para 25]

Justice Dove then considers each ground in turn, beginning with a lengthy analysis of ground one. Speaking for the defendants (i.e. the Secretary of State for Justice and the Lord Chancellor), James Maurici QC argued at the initial hearing that the test of whether or not the purpose of the Directives was to be achieved was not certainty but “reasonable predictability”. Justice Dove accepts that argument in his judgement, but says that an application to vary the costs should be made at an early stage of the proceedings, thus giving “reasonable predictability” of the costs to the claimant. Concluding that stage of the argument, he says he is satisfied that the provisions of the cost rules “in relation to varying the default costs caps is consistent with the applicable EU law when considered in the context of the surrounding procedural rules and practices.” [Para 41]

Moving on to ground two, Justice Dove considers the circumstances in which a claimant’s financial details may be discussed in the course of an environmental court case. He says that the defendant has shown a willingness to amend the new rules to allow for hearings to be heard in private when the claimant is a private individual. The defendant has also said that if the claimant is a charity or a non-governmental organisation, they would only need to disclose aggregate amounts of third party support, which would avoid the necessity of providing information in relation to the size of individual donations. However, Justice Dove says, “it does not directly address the question of the identity of the sources of third party support.” Concerns have been expressed by charities that disclosing the identities of their supporters may deter future support, the result being less funds available to support legal cases and potentially deterring future claims, which would be in breach of the requirements to ensure a wide access to justice. “It follows,” says Justice Dove, “that I am satisfied that the concerns raised by the claimant under Ground 2 are legitimate.” He recommends that if a dispute about costs were to proceed to a hearing, then the rules should provide for that hearing to be held in private in the first instance. This would apply equally whether the claimant were a private individual or a non-governmental organisation. He also recommends that the rules be more specific about the nature and the content of the financial information required. [Para 57]

Moving on to ground three, Justice Dove discusses the question of what is generally held to be “prohibitively expensive” with reference to case law and what has come to be known as the Edwards principles, resulting from a previous decision of the European Court of Justice alluded to above (“the CJEU jurisprudence”). The ‘Edwards principles’ set out the criteria for deciding when costs can be held to be “prohibitively expensive”. In this regard, Justice Dove accepts the argument that the claimant’s own costs should be included in assessments of the claimant’s financial resources for the purposes of evaluating whether or not costs protection should be afforded and whether or not the proceedings are “prohibitively expensive”. [Para 59]

To summarise, Justice Dove accepted the principle that a cap on costs could be varied, but stipulated that this should happen at an early stage of the proceedings to give “reasonable predictability” of the costs to the claimant. On the second and third grounds, he accepted the arguments presented by David Wolfe QC, representing the RSPB, Friends of the Earth, and Client Earth. The changes to the rules will stay in place until the recommended amendments have been made.

“An important victory for access to justice”

The judgement was welcomed by environmental campaigners and by Leigh Day, the law firm representing the three organisations. Speaking for Leigh Day, solicitor Rowan Smith said: “This is a hugely important judgement for anyone who cares about the environment. We have achieved major concessions to the Government’s rules, which make it radically better for access to environmental justice and go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims. Evidence before the court gave examples of successful legal challenges to protect birds, beavers and air quality, all which may not have been pursued under the new rules but for this landmark ruling.” [11]

In a joint statement, the three groups said: “Today’s verdict is an important victory in the battle for better access to justice in England and Wales. People who bravely stand up for nature by going to court can now do so in the knowledge that, once the costs are fixed, they will not be blindsided by a crippling legal bill they were not expecting and hadn’t budgeted for. Another victory from the hearing is that claimants will no longer have to reveal their private financial details in open court, as any hearing about costs protection limits will now take place in private. The Ministry of Justice must change its rules to include this, so that they are lawful.” [12]

Martin Harper, the RSPB’s Director of Conservation, said the judgement was vital in the light of the UK’s proposed exit from the EU. “Without oversight from EU institutions and with uncertainty of what will replace the European Court of Justice, it is down to UK citizens and organisations to challenge decisions affecting the environment,” he said. “This means that the protection of our air, water, countryside and wildlife will rely upon the courts, so everyone must be able to access them. The government is claiming that judicial review and parliamentary process are sufficient to replace the oversight of the EU. If people and charities are hindered by uncertain court costs, our environment could be at real risk.” [13]

Martin Harper also said that colleagues had attended the meeting of the parties to the Aarhus Convention in September, mentioned above, where “the UK conceded that it must take urgent action to make environmental legal action less expensive and more accessible.” And there was further good news, he said, this time from the House of Lords, where peers debated a motion from Lord Marks QC of Henley-upon-Thames that expressed profound regret at the changes to the costs regime. Martin Harper said the quality of the debate was inspiring, “with persuasive and passionate speeches from numerous Peers including the former RSPB Chief Executive Baroness Young, Baroness Parminter and Lord Pannick QC. The overriding theme was the recognition of the vital role that groups like the RSPB play in defending nature and the environment. The outcome was a defeat for the Government as the vote was carried by 164 votes to 97.” [14]

December Update – High Court orders Government to pay all legal costs

Environmental campaigners have secured a further victory, following a High Court decision to order the Government to pay all of the legal costs incurred by the three organisations, up to a cap of £35,000. The High Court also approved the rule changes which the Government was forced to make as a result of the previous ruling. In the order, issued at the end of November, Justice Dove states:

“I am unable to accept the defendant’s submissions that the claimants’ entitlement to costs should be reduced to 50% or some other figure. Whilst it is correct that in relation to Ground 1 the judgement did not lead directly to a quashing order it was necessary for the court to provide detailed analysis of the appropriate procedures to be followed to ensure compliance with EU law requirements. The claimants’ action in bringing the claim enabled the court to provide authoritative guidance in relation to the lawful approach to cost capping in the context of the changes made to the Civil Procedure Rules allowing for cost caps to be adjusted.” [15]

Speaking for Leigh Day, the law firm representing the RSPB, Friends of the Earth, and Client Earth, solicitor Rowan Smith said: “This order is significant in confirming the merit of the case we brought on behalf of the NGOs. The government had argued the claimants shouldn’t be entitled to their full legal costs. This order confirms the case was won beyond doubt by our clients, and also justifies the claimants’ push for the rule changes following the judgement. This case resulted in significant amendments to the Government’s costs rules, which will ensure better access to environmental justice and will go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.” [16]

The order was welcomed by the NGOs, who said it confirmed the justice of their case. Martin Harper, the RSPB’s Director of Conservation, said: “The judge awarded us our full costs in this case on the basis that such clarity is in everyone’s best interests and the interests of access to justice.” Client Earth’s lawyer Gillian Lobo said: “We brought this case because of the real uncertainty and chilling effect created by the government’s new costs rules for those who have to go to court to protect the environment. By ordering the government to pay the claimants’ full legal costs, the judge has reaffirmed the need for us to bring this case and our victory for access to justice.” [17]

And William Rundle, Friends of the Earth lawyer, said: “In the face of further government protestations the court has made it crystal clear that the claimants were right to bring this case, and so the government should pick up our full legal bill. Our claim has enabled an authoritative and detailed ruling, restricting how these new rules must work to be legal. This is a ‘big win’ for a more inclusive system for environmental cases in England and Wales, otherwise people with less money could have been excluded from accessing justice and clearly that’s wrong.” [18]

Acknowledgement

Photograph: Coat of Arms on the Royal Courts of Justice, London EC4 © Copyright Christine Matthews and licensed for reuse under this Creative Commons Licence.

Notes

[1] The changes were implemented by a statutory instrument, SI 2017 No.95 (L.1), The Civil Procedure (Amendment) Rules 2017, laid before Parliament on 3rd February 2017, which included other changes to Civil Procedure Rules that were unrelated to environmental cases. The legislation is available as a PDF document from: http://www.legislation.gov.uk/uksi/2017/95/pdfs/uksi_20170095_en.pdf. The legislation was accompanied by a memorandum that summarises the changes. See: Explanatory Memorandum to the Civil Procedure (Amendment) Rules 2017, available as a PDF document from: http://www.legislation.gov.uk/uksi/2017/95/pdfs/uksiem_20170095_en_001.pdf. The memorandum summarises the procedural changes to environmental cases as follows:

“The new provisions, like those they replace, start with a cap on the liability of an unsuccessful claimant in such a case to pay the defendant’s costs of £5,000 or £10,000 (depending on whether the claimant is an individual or not), and cross-cap on an unsuccessful defendant’s liability to pay the claimant’s costs of £35,000; but they differ in the following main respects: a) extending beyond judicial reviews to include statutory reviews (in particular planning challenges); b) allowing the court to vary the cap and cross-cap either up or down, provided always that any change does not render the cost of proceedings prohibitively expensive for the claimant (and requiring the change if the cost would be prohibitively expensive for the claimant without it); c) requiring the court, when assessing whether proceedings would be prohibitively expensive if the change is or is not made, to take into account a list of factors which mirrors those set out by the CJEU [Court of Justice of the European Union] in the Edwards case; and d) making specific provision for appeals requiring the court to apply the same principles on appeal as at first instance (as required by the Commission v. United Kingdom case).” [Para 7.5]

The ‘Edwards case’ refers to case law, relating to the criteria for deciding when costs can be held to be “prohibitively expensive”. The memorandum also explains that the Government was obliged to change the rules because of judgements by the European Court of Justice and the UK Supreme Court that the existing rules were not compliant with EU law [Ibid: Para 7.4].

[2] The reasons for the legal challenge are explained by Carol Day, solicitor with the law firm Leigh Day, in an article on Martin Harper’s RSPB blog (Leigh Day represented the three organisations who brought the challenge). See ‘Why the RSPB is contesting government plans to curb environmental legal challenges’, RSPB, 01/03/2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/03/01/government-curbs-environmental-challenges.aspx. See also this article by Client Earth: ‘New UK rules make it harder to bring environmental court cases’, Client Earth, 23/11/2016. Retrieved from: https://www.clientearth.org/new-uk-rules-make-harder-bring-environmental-court-cases/.

[3] ‘New government rules on environmental cases “move financial goalposts”, court hears’, Client Earth, 20/07/2017. Retrieved from: https://www.clientearth.org/new-government-rules-environmental-cases-move-financial-goalposts-court-hears/.

[4] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, on 25 June 1998, United Nations Economic Commission for Europe (UNECE), 25/06/1998. Commonly known as the Aarhus Convention, the full text is available as a PDF document via this link to the UNECE website: https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf.

[5] In its introduction to the Aarhus Convention, the EU says (with regard to Articles 4 and 5): “Applicants are entitled to obtain this information within one month of the request and without having to say why they require it. In addition, public authorities are obliged, under the Convention, to actively disseminate environmental information in their possession.” See ‘What is the Aarhus Convention?’ on the European Commission website at http://ec.europa.eu/environment/aarhus/. The Aarhus Convention is an international convention that has been incorporated indirectly into UK domestic law through EU environmental legislation. This includes: Directive 2003/4/EC, which covers public access to environmental information; and Directive 2003/35/EC, which covers public participation in environmental decision-making and also access to justice. Provisions for public participation in environmental decision-making are also included in a number of other environmental directives, such as Directive 2011/92/EU, the EU Environmental Impact Assessment. The European Commission has been a party to the Convention since May 2005, and the ‘Aarhus Regulation’ (EC No. 1367/2006) “addresses the ‘three pillars’ of the Aarhus Convention –access to information, public participation and access to justice in environmental matters –where those are of relevance to EU institutions.” The European Commission also adopted a Notice on Access to Justice in Environmental Matters in April 2017. The EC states: “The notice is a guidance document that clarifies how individuals and their associations can challenge decisions, acts and omissions by public authorities related to EU environmental law before national courts. The notice is based on decisions of the Court of Justice on how national courts should address questions of access to justice related to EU environmental legislation. The scope is limited to access to justice in relation to decisions, acts and omissions by public authorities of the Member States. It does not address environmental litigation between private parties. Nor does it concern the judicial review of acts of the EU institutions.” For the details of this and other relevant legislation, see ‘The EU & the Aarhus Convention: in the EU Member States, in the Community Institutions and Bodies’ on the European Commission website at http://ec.europa.eu/environment/aarhus/legislation.htm.

[6] Ibid: see [4]. The full wording of paragraph 4 is: “In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”

[7] ‘Secondary Legislation Scrutiny – Instrument drawn to the special attention of the House: Civil Procedure (Amendment) Rules 2017 (SI 2017/95)’, in House of Lords – Twenty Fifth Report of Session 2016-17, HL Paper 114, 23/02/2017. Retrieved from: https://publications.parliament.uk/pa/ld201617/ldselect/ldsecleg/114/11403.htm.

[8] In its Explanatory Memorandum to the Civil Procedure (Amendment) Rules 2017, Para 8.2, the Ministry of Justice reports on the consultation as follows: “The consultation ‘Costs Protection in Environmental Claims: Proposals to revise the costs capping scheme for eligible environmental cases’ was published on 17 September and closed on 10 December 2015. The Ministry of Justice received 289 responses. Of these, 207 (around 70%) were from individuals. Half of these (103) used a template response prepared by Friends of the Earth and disagreed with the proposals in the consultation, as did the majority of responses received from other individuals. It appears that almost all the responses were received from potential claimants, or those acting on their behalf. The Government had to balance the interests of claimants and defendants (including the Government and its agencies) in the light of case law. A response to the consultation was published on 17 November 2016 (the consultation document and the Government response, together with an impact assessment, are at https://consult.justice.gov.uk/digital-communications/costs-protection-inenvironmental-claims/). In the light of responses received, the Government decided not to proceed with some of the proposals, but concluded that implementing others would ensure compliance with domestic and EU legal obligations.” [Ibid: see Note 1]

[9] ‘Draft decision VI/8k concerning compliance by the United Kingdom of Great Britain and Northern Ireland with its obligations under the Convention’, United Nations Economic Commission for Europe (UNECE), 28/07/2017. Retrieved from: https://www.unece.org/fileadmin/DAM/env/pp/mop6/Documents_aec/ECE.MP.PP.2017.30_aec.pdf. The ‘positive improvements’ presumably refer to the extension of the cost rules to include statutory reviews of planning decisions (i.e. as well as judicial reviews of decisions made by public authorities), and the specific provisions for appeals (see Note 1). However, the amendments have not addressed the issue of private nuisance claims. The UNECE report says that “by failing to ensure that private nuisance proceedings within the scope of Article 9 Paragraph 3 of the Convention, and for which there is no fully adequate alternative procedure, are not prohibitively expensive, the Party concerned [i.e. the UK] fails to comply with Article 9 Paragraph 4 of the Convention.” The report goes on to recommend “that the Party concerned review its system for allocating costs in private nuisance proceedings within the scope of Article 9 Paragraph 3 of the Convention and undertake practical and legislative measures&hellip to ensure that such procedures, where there is no fully adequate alternative procedure, are not prohibitively expensive.” Those recommendations have yet to be acknowledged, as Client Earth pointed out in ‘New UK rules make it harder to bring environmental court cases’ [Ibid: Note 2]. The expanded definition of an Aarhus claim, they say, “does not extend to the full range of claims that come under Article 9(3). This would include decisions to change land use in a national park, the location of solar energy developments, and private nuisance claims. This means the UK will continue to be in breach of access to justice international obligations.”

The issue of private nuisance claims in relation to the Aarhus Convention has been discussed by the barrister David Hart QC on the UK Human Rights Blog. The protections under the Convention are not limited to public law proceedings, he says. Article 9(3) applies to “acts and omissions by private persons and public authorities which contravene national law relating to the environment,” and Article 9(4) (on prohibitive costs) applies to all such procedures [Ibid: Note 4]. However, says David Hart, “despite those words in Art.9(3), the Government has tried to draw a distinction between public law cases and environmental cases raising private law issues such as in the private law of nuisance. For non-lawyers, a private nuisance is when you get stunk out of your home or driven to complain to the police about next door’s noise or when your neighbour funnels polluted water across your land or sends clouds of dust onto your garden or washing.” He then goes on to illustrate the issues that can arise from such cases by discussing some real-life scenarios, one problem being that private nuisance claims can be prohibitively expensive; therefore, only “the most wealthy people” can afford to initiate proceedings. See ‘Government still ignoring private nuisance claims’, David Hart QC, UK Human Rights Blog, 26/01/2017. Retrieved from: https://ukhumanrightsblog.com/2017/01/26/aarhus-convention-update-government-still-ignoring-private-nuisance-claims/.

[10] England and Wales High Court (Administrative Court) Decisions, EWHC 2309 (Admin), Case No: CO/1011/2017, Royal Courts of Justice, 15/09/2017. The Royal Society for the Protection of Birds, Friends of the Earth Ltd & Client Earth (Claimants) v Secretary of State for Justice & the Lord Chancellor (Defendants). For the full text of the judgement, see the BAILLI website at http://www.bailii.org/ew/cases/EWHC/Admin/2017/2309.html. The quote is from Paragraph 8.

[11] ‘NGOs win legal battle over access to environmental justice’, Leigh Day, 15/09/2017. Retrieved from: https://www.leighday.co.uk/News/News-2017/September-2017/NGOs-win-legal-battle-over-access-to-environmental.

[12] ‘Victory for UK environment as judge says cost rules must change’, Client Earth, 15/09/2017. Retrieved from: https://www.clientearth.org/victory-environment-judge-says-cost-rules-must-change/.

[13] ‘Good news from last Friday: an important victory in the battle for better access to environmental justice’, Martin Harper, RSPB, 21/09/2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/09/21/good-news-from-last-friday-an-important-victory-in-the-battle-for-better-access-to-environmental-justice.aspx.

[14] According to Hansard, the vote was in fact carried by 142 votes for, 97 votes against (not 164 votes for, as suggested). See ‘House of Lords Hansard – Civil Procedure (Amendment) Rules 2017’, 13 September 2017, Volume 783. Motion to Regret. Moved by Lord Marks of Henley-on-Thames. Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee, Session 2016–17. Retrieved from Hansard at: https://hansard.parliament.uk/Lords/2017-09-13/debates/F39F0795-CF5D-47EB-9055-90108FFC5C48/CivilProcedure(Amendment)Rules2017.

[15] ‘High Court approves rule changes and orders government to pay legal costs in NGOs’ access to environmental justice case’, Leigh Day, 04/12/2017. Retrieved from: https://www.leighday.co.uk/News/News-2017/December-2017/High-Court-approves-rule-changes-and-orders-govern. The article provides a legal detail that the 15th September judgement fails to mention in relation to the grounds for the challenge: “The NGOs had challenged the compatibility of the new rules with Article 3(7) of the Public Participation Directive 2003/35/ED, because they failed to provide: (i) at the earliest stage possible, certainty for claimants as to their costs exposure; and (ii) mandatory private hearings into a claimant’s financial resources (including to protect the identity of donors).”

[16] Ibid: Note 15.
[17] Ibid: Note 15.
[18] Ibid: Note 15.

Air Pollution in the UK – Seven years of illegal NO2 emissions

UK Government publishes its latest plans to tackle air pollution

But compliance with legal limits is still a distant prospect

August 21st 2017

The UK Government has published its latest plans to tackle air pollution, following a long-running legal battle over its failure to comply with EU standards for air quality. The plans were published by the Department for the Environment, Food and Rural Affairs (Defra) and the Department for Transport on 26th July and focused on curbing roadside nitrogen dioxide (NO2) concentrations. In a press release, the Government announced that a comprehensive Clean Air Strategy will be published next year which will outline its plans to tackle other sources of air pollution. [1] The press release highlights the Government’s intention to end the sale of all new conventional petrol and diesel vehicles by 2040, whilst the current strategy on curbing NO2 levels places the onus on local authorities to produce action plans.

Client Earth v. UK Government: A seven-year legal battle

The UK Plan for Tackling Roadside Nitrogen Dioxide Concentrations is the latest development in a seven-year legal battle between the UK Government and the environment law firm Client Earth, which began in 2010 as a collaborative venture with the campaign group Clean Air in London. [2] In an initial response to the latest plan, Client Earth has described it as lacking in urgency and apparently “little more than a shabby rewrite of the previous draft plans.” [3] Anna Heslop, one of the firm’s air quality lawyers, said: “Successive governments have failed to protect us from illegal air quality. We’ve had to return repeatedly to court to challenge the Government on its weak and incoherent air quality policies and yet, seven years on, we are still having to fight to protect people’s health.” [4]

Should the lawyers take further court action, it will be the eighth time that Client Earth has taken the UK Government to court over its plans to curb NO2 emissions. In summary, the legal saga is as follows:

• 2011: High Court
• 2012: Court of Appeal
• 2013: UK Supreme Court
• 2014: European Court of Justice
• 2015: UK Supreme Court
• 2016: High Court
• 2017: High Court

What follows is the background to the latest plans. This legal saga can best be summarised as a history of missed deadlines, deliberate procrastination, and persistence on the part of the UK Government in its refusal to comply with EU law. Its air quality plans have repeatedly been deemed unlawful by the courts, and the Treasury has been consistent in having the final say, placing economic and political considerations above public health.

January 2010: UK misses deadline for legal limits of NO2 emissions

The legal battle began in 2010 as a response to the UK’s failure to meet the requirements of the EU’s Ambient Air Quality Directive which came into force in 2008. The 2008/50/EU Directive forms part of a body of legislation which sets out health-based standards and targets for a number of pollutants, including nitrogen dioxide, sulphur dioxide, carbon monoxide, lead, benzene, and fine particles known as particulate matter. Under EU law “a limit value is legally binding from the date it enters into force subject to any exceedances permitted by the legislation.” [5] The limit value for nitrogen dioxide (NO2), which came into force on January 1st 2010, is 40µg/m3 (40 micrograms per cubic metre), taken as the average measure over a twelve-month period. A recent report on the implementation of the Directive says that NO2 levels at the most polluted traffic site in London (Marylebone Road) were well above 100μg/m3 in the period 2003 to 2009. [6] In 2013, NO2 annual mean concentrations of 85μg/m3 were recorded. In short, the levels have been well over the legal limit of 40µg/m3, which should have been met by the start of 2010.

The impact of diesel

A recent study by the Royal College of Physicians says that every year in the UK “around 40,000 deaths are attributable to exposure to outdoor air pollution” [7] Air pollutant emissions from road traffic are generally held to be the main source of the problem, with diesel vehicles in particular being the main source of NO2 emissions. The irony here is that in 2001 the Labour Government adopted measures to boost the sale of diesel vehicles on the grounds that this would cut carbon emissions and help to reduce the effects of climate change. Martin Goodman reports that the Government published guidance on NO2 levels in 2004, in which it claimed “the UK Air Quality Strategy aims to achieve its objectives earlier than the EU has set.” However, this optimism was based on old data which showed a 37% fall in NO2 emissions in the decade up to 2000, with the expectation of a further 25% fall by 2010. The calculations did not foresee the impact of the increased use of diesel. [8]

2011–2012: High Court judges say enforcement of legal requirement is a matter for the European Commission

The legal case first appeared before the High Court in 2011, with Client Earth launching a judicial review of the failure by the Secretary of State for the Environment, Food and Rural Affairs to comply with the legal limits for NO2 emissions as set out in the Directive. The judge presiding over the case found that the Government was indeed in breach of a legal requirement, but declined to rule on any remedy, saying that enforcement was a matter for the European Commission. In May 2012, Client Earth appealed to the Court of Appeal, but the Court upheld the decision of the High Court judge. [9]

2013: UK Supreme Court seeks advice from European Court of Justice

In 2013, however, Client Earth submitted an appeal to the newly formed Supreme Court, and the court found in Client Earth’s favour. The Court ruled that the UK Government was in breach of a legal duty to comply with NO2 limits in 16 cities and regions, including Manchester, Birmingham and Glasgow, as well as London. As for what action should be taken, the Court then sought advice from the European Court of Justice regarding the provisions of the Air Quality Directive and the role of national courts in providing appropriate remedies.

2014: European Court of Justice considers “the longest-running infringement of EU law in history”

The European Court of Justice considered a body of evidence in compiling its advice, including the available data on NO2 levels. Martin Goodman says scientists from King’s College London set up a monitoring station in Oxford Street which recorded an average level of 135μg/m3 in 2014, whilst a daytime reading peaked at 463μg/m3. As for the Government’s response: “Lawyers from the European Commission told the European judges that they were considering perhaps the longest-running infringement of EU law in history.” [10]

UK Government hopes to reach compliance by 2025… or 2030…

The provisions of the Air Quality Directive say that member states can apply for an extension of up to five years to meet limiting values in a specific zone, subject to an assessment by the Commission. [11] However, the Government had already missed its 2010 deadline and said to the EU that it was unable to meet the next deadline of January 1st 2015. It was hoping to reach compliance by 2025, but then admitted that the target for NO2 levels in London, Leeds and Birmingham would not be met until 2030. [12] The European Court of Justice delivered its ruling in November 2014. The judgement said that the UK was legally obliged to mitigate air pollution and was “wholly adrift of all procedures to fit such compliance to the given deadlines. Furthermore, it must produce a plan to keep the period in which NO2 pollution was breaking legal limits ‘as short as possible.'”

April 2015: UK Supreme Court orders Government to take urgent action on air pollution

The decision was sent back to the UK Supreme Court, which delivered its verdict in April 2015: “The Supreme Court unanimously orders that the Government must submit new air quality plans to the European Commission no later than 31st December 2015.” [13] The Supreme Court also demanded urgent action on the part of the Government with regard to NO2 levels, without setting a deadline for compliance. However, the parties were granted permission to return to the High Court for clarification of the order, with particular regard to the terms ‘urgent’ and ‘as soon as possible’ and how they were to be understood. A press release from Client Earth said: “The Supreme Court ruling means the Government must start work on a comprehensive plan to meet pollution limits as soon as possible. Among the measures that that it must consider are low emission zones, congestion charging, and other economic incentives. Client Earth is calling for action to clean up the worst polluting diesel vehicles, including through a national network of low emission zones.” [14]

December 2015: the UK Government continues to defy EU law on NO2 limits

Defra published a draft plan in September 2015. In response, Client Earth released a series of press statements which criticised the Government for a lack of joined-up thinking, saying that the Department for Transport and DECC (the now defunct Department for Energy and Climate Change) had failed to make any assessment of the impact on air quality when making major policy decisions, whilst Defra’s draft plans, published as a consultation document, did not meet the demand for immediate action:

“The Supreme Court ordered Liz Truss to come up with a plan to achieve legal levels of air quality as soon as possible. Instead, even under the Government’s own projections, many cities in the UK will still have illegal levels of diesel fumes until 2020 and beyond. In London the problem is even worse – Defra projections say the legal levels of air pollution will not be reached until 2025. The plans contain only one new national measure: ‘clean air zones’ which would restrict older vehicles entering the most polluted city centres – but leaving it up to overstretched and underfunded local authorities to implement them. We therefore don’t have any idea if or when these clean air zones will ever materialise.” [15]

Treasury reduces Defra’s plans for Clean Air Zones

Following the consultation period, the Government’s plans were finally published on 17th December 2015. The plans repeated much of what was said in the draft. So the Government had responded to the Supreme Court ruling by producing an air quality plan by the end of the year deadline, but the plan was to reach compliance with the EU’s limit values for NO2 by 2025. Client Earth said this amounted to a total defiance of the Air Quality Directive, the European Court of Justice, and the UK Supreme Court. According to Martin Goodman, government ministers had been advised by Defra’s head of air quality to implement clean air zones, which would bring forward compliance with EU NO2 limits “by directly removing the dirtiest vehicles from hotspot areas and by encouraging people to swap polluting vehicles for less polluting ones.” [16] However, the Treasury reduced Defra’s plans for 16 clean air zones outside of London to 5 (Birmingham, Derby, Leeds, Nottingham and Southampton), and also blocked an increase in charges for driving in city centres. [17] Client Earth responded to the plan’s publication with an announcement that the Government would face further legal action. The firm’s principal air quality lawyer, Alan Andrews, said: “The Government seems to think that the health of people in cities like Glasgow, Manchester and Bristol is less important than that of people in London. While London gets a clean air zone covering all vehicles, Birmingham gets a second class zone and Derby and Southampton third class, while other areas including Manchester and Liverpool are left out. We all have the same right to breathe clean air.” [18] The new legal challenge was launched in March 2016 when Client Earth lodged papers at the High Court, seeking a judicial review of the Government’s plans. [19]

April 2016: MPs declare UK air pollution to be a “public health emergency”

In April 2016, the Environment, Food and Rural Affairs (Efra) Select Committee, which oversees the work of Defra, published a report on the state of air pollution in the UK and the Government’s attempts to tackle it, declaring that the situation amounted to a “public health emergency.” [20] The cross-party group of MPs called on the Government to introduce a scrappage scheme for old diesel vehicles which would target those older than ten years of age and offer drivers financial incentives to trade them in. The Efra report also says that UK ministers should argue robustly with the EU to set lower limits for nitrogen oxide emissions from new vehicles, as the EU’s ‘real world’ tests, to be implemented from 1st September 2017, would set initial emission limits that are twice as high as previous laboratory test levels and set limits into the 2020s which are 50% higher. [21] The report also reiterates Client Earth’s criticism of the lack of joined-up thinking from government departments: “Despite mounting evidence of the costly health and environmental impacts of air pollution, we see little evidence of a cohesive cross-government plan to tackle emissions.” The report says that the inter-ministerial ‘Clean Growth Group’, which is meant to be co-ordinating efforts to tackle air pollution, is seen as secretive and “does not publish information on its meetings, outcomes or action plans.”

May 2016: London Mayor Sadiq Khan joins Client Earth’s legal challenge

In May 2016, newly-elected London Mayor Sadiq Khan announced his intention to submit statements and evidence in Client Earth’s forthcoming legal case at the High Court. Speaking to the Guardian’s environment correspondent Damian Carrington, he said: “The government’s current air quality plan with respect to London is based on the very limited ambition of the previous mayor to tackle air pollution and isn’t enough to protect Londoners’ health.” [22] Earlier that month, the Guardian had revealed that Boris Johnson, Sadiq Khan’s predecessor, had commissioned a report on air pollution in London but the report had remained unpublished since its completion in 2013. The report showed that 433 schools in London are in areas that exceed legal limits for NO2 pollution and that 80% of those schools are in deprived areas. [23] On taking up his post as mayor, Sadiq Khan set out new plans to tackle London’s air pollution problem, which included doubling the size of the ‘Ultra Low Emission Zone,’ which Boris Johnson had planned to implement by 2020, and retrofitting 1,000 more buses with cleaner technology. Older, dirtier diesel vehicles will be charged £12.50 to enter the low emission zone. Sadiq Khan said to the Guardian: “It’s clear we need to speed up our efforts so I’m calling on government to match my new level of ambition for London and to work with me to improve our city’s dirty air and to make sure we get within legal limits much sooner – before the current target of 2025.” [24]

November 2016: Judicial Review finds Air Quality Plan is based knowingly on flawed data

Client Earth’s case was heard at the High Court in October 2016. In delivering the Court’s ruling, Mr Justice Garnham agreed with Client Earth that the Environment Secretary had failed to take measures that would bring the UK into compliance with the law “as soon as possible.” The judgement, published on 2nd November, said that the Government’s 2015 Air Quality Plan failed to comply with the Supreme Court ruling or relevant EU Directives and found that the Government had erred in law by setting compliance dates based on an over-optimistic modelling of pollution levels, using lab tests which they knew to be flawed. Instead of identifying measures that would achieve compliance as soon as possible, “it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. To adopt a plan based on such assumptions was to breach both the Directive and the Regulations.” [25] The judge said it was remarkable that the Government had acknowledged that its plan was built around a forecast based on figures which emerging data was undermining and that “if higher, more realistic, assumptions for emissions are made, the number of zones which will not meet the limit value in 2020 increases substantially.” [26]

Evidence suggests the Government’s timetable is motivated by the prospect of EU fines

The judge also commented on ministerial correspondence which suggested “that a principal driving factor in selecting 2020 was not the obligation to remedy the problem as soon as possible but to remedy it in time to avoid EU infraction proceedings.” [27] The correspondence said: “In developing potential measures for the plans we have used projected exceedances in 2020 as the basis for defining the worst areas. This is based on our understanding that 2020 is likely to be the earliest the EU will move to fines.” The judge said that, while there can be no objection to a member state having regard to cost when choosing between two equally effective measures, or when deciding which organ of government should pay, he rejected “any suggestion that the state can have any regard to cost in fixing the date for compliance or in determining the route by which the compliance can be achieved where one route produces results quicker than another.” [28] He continued: “In those respects the determining consideration has to be the efficacy of the measure in question and not their cost. That, it seems to me, flows inevitably from the requirements in the Article to keep the exceedance period as short as possible.”

Back to the drawing board

The ruling was welcomed by Client Earth whose air quality lawyer Alan Andrews said in a press statement: “We need a national network of clean air zones to be in place by 2018 in cities across the UK, not just in a handful of cities. The Government also needs to stop these inaccurate modelling forecasts. Future projections of compliance need to be based on what is really coming out of the exhausts of diesel cars when driving on the road, not just the results of discredited laboratory tests.” [29]

For the Government, it was a case of ‘back to the drawing board.’

UK Government is ordered to produce a draft plan by 24 April 2017…

The deadlines for the Government were delivered by Mr Justice Garnham at the High Court on 21st November. The judge, rejecting the Government’s suggested timetable of September 2017 to produce a final plan, ordered the Government to produce a draft plan by 24th April 2017 and a final one by 31st July 2017. The judge also requested that the Government publish the technical data on which it was basing its plans, and gave Client Earth permission to return to the High Court should there be any further problems with the draft plan. Responding to the ruling, Alan Andrews said that a total of 37 out of 43 zones in the UK had illegal levels of air pollution, and argued that a national network of clean air zones must be part of the Government’s plans, which meant far more than the six which were currently planned. [30]

But on 21 April 2017 the UK Government wants an extension

Following the PM's decision to call a general election on 8th June, the Government then made a last-minute attempt to delay publication of the draft plan, seeking 30th June and 15th September as the new deadlines. The application to the High Court was submitted late on Friday 21st April after the court had closed, and shortly before the original deadline of 4pm on Monday 24th April. Mr Justice Garnham ordered a hearing into the application for Thursday, 27th April. At the hearing, the Government claimed that "purdah rules" meant that they could not publish the plans until after the general election, but was forced to concede that the delay could have an impact on the implementation of measures to reduce air pollution "as soon as possible." Client Earth argued that air pollution was a matter of public health not politics. The judge agreed, but accepted that purdah rules would affect the local elections on 4th May. He ordered the Government to produce the plans by the new deadline of 9th May. The 31st July deadline remained in force. [31]

May 2017: Draft plans are “weak and incoherent”

The draft plans were finally published for consultation on 5th May, while the results of the local elections were still being counted. Client Earth’s CEO James Thornton gave an immediate response, saying the plans were weak and incoherent, and that the UK would still be faced with illegal air quality for years to come under the proposals: “We fail to see how the non-charging clean air zones, proposed by the Government, will be effective if they don’t persuade motorists to stay out of those areas. The Government seems to be passing the buck to local authorities rather than taking responsibility for this public health emergency,” he said. He also noted that the Government had failed to make any commitments to a diesel scrappage scheme. [32]

A flawed consultation

The draft plans were accompanied by a public consultation which ran from 5th May to 15th June. But on 31st May Client Earth said that the consultation did not include measures which the government’s own technical data showed were the best way to bring down air pollution as soon as possible. In particular, the evidence showed that a network of clean air zones which charged the dirtiest diesel vehicles for entering the most polluted areas of the UK would be the most effective solution, but the draft plans did not set this out as a proposal. Client Earth’s lawyers had written to Defra seeking improvements to the draft, but Defra had refused to modify the consultation. James Thornton said the consultation was flawed and that Client Earth would be seeking a ruling from the High Court on this issue. “The government’s plans and consultation do not match what its own evidence says needs to happen,” he said. “If the evidence shows that taking certain measures will be necessary to tackle the public health crisis of polluted air, then the plans and associated consultation needs to make that clear.” [33]

July 2017: Back to the High Court

A hearing at the High Court was set for Wednesday 5th July. Mr Justice Garnham ruled that the draft plan in itself was not unlawful, but suggested that the final plan could well be open to legal challenge if it did not deal with some of the concerns presented by Client Earth. [34] The judge also stated that any alternative measures to meet air quality limits would have to be equally effective or more effective than a clean air zone that charged polluting vehicles for entering.

The final plan was published on 26th July.

A “highly localised” problem, says Government

We return now to this latest plan, the UK Plan for Tackling Roadside Nitrogen Dioxide Concentrations. In its press release, the Government’s use of statistics reduces the problem of air pollution to a relatively minor proportion of the country’s roads. It says that NO2 levels have decreased by 50% in the last 15 years, but 4% of Britain’s major roads (81 out of 1,800) are due to breach legal pollution limits for NO2, including 33 outside of London. Consequently, the Government’s press release describes NO2 pollution as a highly localised problem and places the burden on local authorities to sort this out: “Due to the highly localised nature of the problem, local knowledge will be crucial in solving pollution problems in these hotspots,” it says. [35]

Local authorities must take “robust action”

The Government says it will be providing towns and cities with £255m to implement local plans. Local authorities will be asked to produce initial plans within eight months and final plans by the end of 2018. Local councils “with the worst levels of air pollution at busy road junctions and hotspots must take robust action,” with the aim of delivering roadside NO2 compliance “in the fastest possible time.” In addition to the £255m implementation fund, the Government has also announced a new Clean Air Fund, the details of which will be announced later this year. The aim of the Clean Air Fund is “to support improvements which will reduce the need for restrictions on polluting vehicles.” Local authorities will be invited to bid for funds to carry out these improvements. The measures could include reducing congestion by changing road layouts or removing traffic lights and speed humps; upgrading bus fleets with new low emission buses or retrofitting older buses with cleaner engines; encouraging the uptake of ultra low emission vehicles; and introducing concessionary travel schemes and new park and ride services. A consultation is expected in the autumn to gather views on measures to support those affected by local plans, such as a targeted scrappage scheme for car and van drivers.

Charging polluting vehicles should be a last resort, says Government

The Government says local authorities should only consider restrictions on polluting vehicles if their action plans are insufficient to ensure legal compliance, and charging should only be considered as a last resort. In addition, “restrictions or charging on polluting vehicles should be time-limited and lifted as soon as air pollution is within legal limits and the risk of future breaches has passed.”

£2.7bn to improve air quality

The Government says it is committing £2.7bn in total to reducing vehicle emissions and improving air quality, including investments in the development and manufacture of ultra low emission vehicles, and a £100m Clean Bus Technology Fund grant scheme to fund new buses and retrofitting older buses, £40m of which was being made available immediately. A ring-fenced Air Quality Fund of £100m has been allocated to Highways England to help improve air quality on the national road network as part of the Government’s Road Investment Strategy. The fund will be available to 2021 and an article in the Independent reveals how Highways England may spend part of the money, following the publication of its air quality strategy. [36]

Highways England’s air quality strategy, published on 2nd August, says “emissions from diesel vehicles are a significant contributor to the poor air quality at the roadside” and contributes around 77% of the NO2 close to the motorway network. [37] The agency is investing in a three-year programme from 2015 to 2018 which will deliver around 50 continuous monitoring stations across the road network to provide real time air quality information. It is also exploring the possibility of using physical barriers to pollution by testing a a new polymer material with the potential to clean the air. If the tests are successful, it will consider using the material to build canopies which would cover stretches of its road network. The agency says it started trialling a physical air quality barrier in 2015 which covered a 100-metre stretch of the M62, “initially 4 metres high and raised to 6 metres in early 2016.” It then carried out a trial of a barrier incorporating an innovative polymer material with the potential to absorb NO2. The strategy document says: “We are using these trials to investigate if barriers can help contribute to improving air quality for our neighbours. The results from the monitoring of such trials will help us understand if this has been a success with the potential to implement barriers on our network. We are also investigating if we can reduce the costs to construct a canopy, which is a tunnel-like structure designed to prevent vehicle emissions reaching our neighbours, to make this a viable solution.”

The agency has also set a target of putting a charging point for ultra low emission vehicles every 20 miles on 95% of the road network. However, according to the Independent, the Automobile Association has expressed concern over the pressure a nation of electric cars would place on the National Grid, with a warning “it would have to cope with a mass switch-on after the evening rush hour,” whilst other estimates have suggested around 10 new power stations would need to be built to deal with the increased demand. [38]

The breakdown of the Government’s £2.7bn is detailed in its press release. [39]

Client Earth seeks urgent clarification on the Government’s plan

Reactions to the Government’s latest plans have been overwhelmingly critical. Client Earth’s CEO James Thornton issued a quick response, describing them as little more than a shabby rewrite of the previous draft plans, as mentioned above. “This plan is, yet again, a plan for more plans,” he said. “The Government is passing the buck to local authorities to come up with their own schemes as an alternative to clean air zones which charge the most polluting vehicles to enter our towns and cities. Yet Defra’s own evidence shows that charging clean air zones would be the swiftest way to tackle illegal levels of pollution.” [40] He highlighted the lengthy timetable for local authorities to develop their plans, the lack of attention to devolved regions, and described the 2040 diesel and petrol ban as a diversion because it failed to deal with the immediate problem of NO2 levels.

Last week, Client Earth wrote to Defra seeking urgent clarification on the plans. In particular, the letter asks for clarity on the guidance given to local authorities concerning how they will evaluate the best ways of bringing air pollution down as soon as possible, “as well as how ministers will ensure that air quality limits are met across England.” [41] Client Earth is also seeking clarity on how Defra will assess plans from the 23 local authorities and how quickly this will be done.

What about the devolved regions?

The law firm has also written to the devolved governments of Wales and Scotland, seeking clarification on their plans. Writing in theHolyrood Magazine, Liam Kirkaldy reports that there are currently 38 Pollution Zones in Scotland, which councils have said are at risk of dangerous levels of air pollution. [42] The number has risen from 35 in 2015. Client Earth has warned that “unless ministers take tougher action then Aberdeen and Edinburgh will not meet legal limits until 2020, and Glasgow will not comply until 2024.” The Scottish Government has published a proposal to trial a first Low Emission Zone in one Scottish city, and Client Earth questions how this will help reduce dangerous levels elsewhere. In a letter to the Scottish Government, the lawyers have asked for “further information on how limit values will be met in the shortest time possible in all parts of Scotland.”

Plan criticised by local authorities

The Government’s plan has been criticised by local authorities, politicians, environmental campaigners, and health experts. According to the Guardian, the leaders of Liverpool, Leeds, Birmingham, Southampton, Leicester and Oxford city councils have written to the Environment Secretary Michael Gove, calling for urgent legislation and a comprehensive scrappage scheme to encourage people to give up diesel vehicles. [43] The plan proposes a limited version of a scrappage scheme targeted at those who most need support, such as people on lower incomes or those living in the neighbourhood of a clean air zone. The letter says that the “updated clean air plan, while indicating long-term ambition, still lacks some specific actions that would enable us to meet the legal limits and establish safer air sooner rather than later.” The article by Rowena Mason and Damian Carrington says that Sheffield Council has called the report “woefully inadequate,” with Jack Scott, cabinet member for transport, reportedly saying he was “highly sceptical that the Government’s announcement even meets their legal duties on air quality.”

Ban on diesel is “highly symbolic”

BBC News reports that Liberal Democrat and former energy secretary Ed Davey described the lack of a scrappage scheme as a “shameful betrayal” of diesel car drivers and said it showed “the utter lack of ambition” in the plan, whilst London Mayor Sadiq Khan said people in London were suffering right now because of air pollution and can’t afford to wait. [44] Sue Hayman, the shadow environment secretary, told the Guardian that here had already been “seven years of illegal air pollution under this Conservative government, who have only acted after being dragged through the courts.” [45] Speaking to Ian Johnston, environment correspondent for the Independent, Gareth Redmond-King, head of climate and energy at WWF-UK, said the proposed ban on petrol and diesel vehicles from 2040 might sound good but will end up being meaningless as drivers will be switching to electric vehicles in any case. “The Government’s been failing to comply with this law for seven years,” he said, “and then is setting itself a target so far in the future that it will be delivered even if the Government did nothing.” [46] Professor Alastair Lewis, of the National Centre for Atmospheric Science at York University, made a similar comment, describing the ban as “highly symbolic”: “Given the rate of improvement in battery and electric vehicle technology over the last 10 years, by 2040 small combustion engines in private cars could well have disappeared without any Government intervention,” he said.

Doctors demand a “more robust response to this public health emergency”

According to the Guardian, senior doctors specialising in child health have also expressed their disappointment at the failure to take more decisive action. [47] Professor Neena Modi, president of the Royal College of Paediatrics and Child Health, said there was indisputable evidence demonstrating the tragic effects that air pollution has on the development of the lungs and hearts of children. “Having been told to go back to the drawing board so many times, that the Government’s final air quality plan still lacks sufficiently strong measures to clean our air is frankly inexcusable,” she said. Professor Jonathan Grigg, from the London School of Medicine and Dentistry, also said more urgent action was needed: “The 2040 target means that several generations of children will suffer the long term consequences of inhaling sooty particles and oxides of nitrogen,” he said. “The Government needs to act now, with a faster and more robust response to this public health emergency.”

Other commentators have pointed to the lack of attention to other sources of air pollution. Roger Harrabin, BBC environment analyst, said the Government’s plan did not address pollution from construction, farming and gas boilers. [48] Professor Alastair Lewis, of the National Centre for Atmospheric Science at York University, told the Independent: “There still remain many other urban sources of pollution not only from transport, but also heating, construction, domestic emissions, and external sources of pollution that drift into cities from outside, most notably from the agricultural sector. Some other urban sources of pollution are even on an upwards trend, most notably from wood burning stoves.” [49]

Plan criticised by transport unions

Unions representing the car manufacturing sector have expressed concern over the potential impact on employment when conventional vehicles are phased out. Speaking to the Guardian, Tony Burke, assistant general secretary of Unite, said: “The announcement has wide-ranging implications for the UK economy and future employment prospects of hundreds of thousands of skilled workers. We are calling for a national debate embracing employers, unions and ministers.” [50] And unions representing rail workers have also condemned the Government’s plan, pointing to the recent decision of the Transport Secretary Chris Grayling to abandon plans to electrify parts of the rail network. Speaking to the Independent, Mick Cash, general secretary of the RMT, said the proposed ban on petrol and diesel vehicles “exposes the rank hypocrisy of their decision to shelve long-planned rail electrification works. Puffed up news announcements about plans that are a generation away will not mask the reality of scrapped modernisation programmes on our railways in the here and now,” he said. [51]

Environment Secretary responds: “It’s up to local councils to do the hard work,” he says

The Environment Secretary Michael Gove responded to some of these criticisms on the Today programme on BBC Radio Four. [52] On charging motorists to enter clean air zones, he said the idea had been rejected and that it was up to local authorities to come up with imaginative solutions. “I don’t believe that it is necessary to bring in charging, but we will work with local authorities in order to determine what the best approach is,” he said. He described charging as “a blunt instrument,” saying he would prefer to use “a series of surgical interventions.” “That’s both fairer to drivers and also likely to be more effective, more quickly in the areas that count,” he said. On the idea of a scrappage scheme for old diesel vehicles, he said he had no ideological objection to the idea but insisted it was up to local councils to do the hard work and put them forward. “Everyone acknowledges that scrappage schemes in the past have been poor value for money,” he said. “Essentially they pay people for something they are already going to do.”

But speaking for Client Earth, air quality lawyer Anna Heslop said the plan would fail without a national network of clean air zones, which the Government’s own evidence showed would be the most effective option. “We will be holding the Government to account on this,” she said. “They have been in breach of these limits for seven years, and we will continue to do that.” [53]

European Commission: The Final Word?

Whilst the Government’s air quality plan shifts the burden of responsibility onto local authorities, its press release also places part of the blame for rising NO2 levels on the EU. It states: “The UK is one of 17 EU countries breaching annual targets for nitrogen dioxide, a problem which has been made worse by the failure of the European testing regime for vehicle emissions.” Given the fact that the Government was aware of the flawed data in its projections of NO2 emissions, as mentioned above, one can only describe this comment as somewhat hypocritical. It is also ironic given the fact that in February 2014 the European Commission began infringement proceedings against the UK for its failure to reduce NO2 levels. The EC issued a “letter of formal notice” to the UK Government, which is the first stage in a process that could culminate in the imposition of fines by the European Court of Justice. [54] And in February this year, the EC issued the UK with a final warning to comply with air quality laws that have been breached for the last seven years. [55] In a press release, the EC said NO2 emissions were over the legal limit in 16 air quality zones in the UK, including London, Birmingham, Leeds, and Glasgow. According to BBC News, Alexander Winterstein, speaking on behalf of the EC, was asked whether the UK would remain bound by any legal proceedings after leaving the EU. “For as long as the UK is a member of the European Union, rights and obligations apply,” he said. [56] As mentioned above, evidence submitted in court has suggested that the Government’s timetable on this issue is motivated by the prospect of EU fines, rather than the need to comply with a legal requirement in as short a time as possible, and the latest plan does little to suggest otherwise.

Acknowledgement

Photograph: Hope Street, Glasgow © Copyright Thomas Nugent and licensed for reuse under this Creative Commons Licence. The caption says: “According to Friends of the Earth, this is the most polluted street in Scotland for nitrogen dioxide, resulting from vehicle exhaust fumes.” In 2016. the nitrogen dioxide level at Hope Street, Glasgow, was an average of 65µg/m3. See ‘Scotland’s Most Polluted Streets Revealed – 5 New Pollution Zones Declared’, Friends of the Earth Scotland press release, 15/01/2017. Accessed from: https://foe.scot/press-release/scotland-s-most-polluted-streets-revealed-5-new-pollution-zones-declared/.

Notes

[1] ‘Plan for roadside NO2 concentrations published’, UK Government press release, 26/07/2017. Accessed from: https://www.gov.uk/government/news/plan-for-roadside-no2-concentrations-published.
[2] See Martin Goodman, ‘An Air That Kills’, in Client Earth: Building an ecological civilisation, Martin Goodman and James Thornton, London: Scribe Publications, 2017.
[3] ‘Gove falls at first hurdle on air pollution, say environmental lawyers’, Client Earth press release, 26/07/2017. Accessed from: https://www.clientearth.org/gove-falls-first-hurdle-air-pollution-plans-environmental-lawyers/.
[4] Quoted by Ian Johnston in ‘Why the Government’s plan to ban petrol and diesel cars may not achieve anything’, The Independent, 26/07/2017. Accessed from: http://www.independent.co.uk/environment/petrol-diesel-car-ban-government-air-pollution-2040-may-not-achieve-anything-environment-a7860971.html.
[5] ‘Air Quality Standards’, European Commission, last updated 22/09/2017. Accessed from: http://ec.europa.eu/environment/air/quality/standards.htm.
[6] Implementation of the Air Quality Directive. A study for the European Parliament’s Committee on Environment, Public Health and Food Safety. Nagl, C., Schneider, J., and Thielen, P. April 2016. Accessed as a PDF from: http://www.europarl.europa.eu/RegData/etudes/STUD/2016/578986/IPOL_STU(2016)578986_EN.pdf.
[7] Every breath we take: the lifelong impact of air pollution, Royal College of Physicians, February 2016. Available as a PDF from: https://www.rcplondon.ac.uk/projects/outputs/every-breath-we-take-lifelong-impact-air-pollution.
[8] Ibid: see [2].
[9] For a summary of the steps leading up to the UK Supreme Court ruling in 2015, see The UK Supreme Court ruling in the ClientEarth case: Consequences and next steps, Client Earth, September 2015. Accessed as a PDF from: https://www.documents.clientearth.org/wp-content/uploads/library/2015-09-17-the-uk-supreme-court-ruling-in-the-clientearth-case-consequences-and-next-steps-ce-en.pdf.
[10] Ibid: see [2].
[11] Ibid: see [5].
[12] As reported by Martin Goodman: see [2].
[13] Ibid: see [12]. For the judgement, see ‘R (on the application of ClientEarth) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs (Respondent)’, Supreme Court Judgements, 29 April 2015. Accessed as a PDF from: https://www.supremecourt.uk/cases/docs/uksc-2012-0179-judgment.pdf.
[14] ‘UK Supreme Court orders Government to take “immediate action” on air pollution’, Client Earth press release, 29/04/2015. Accessed from: https://www.clientearth.org/uk-supreme-court-orders-government-take-immediate-action-air-pollution/.
[15] ‘UK Ministers facing new legal action over air pollution’, Client Earth press release, 14/09/2017. Accessed from: https://www.clientearth.org/uk-ministers-facing-new-legal-action-over-air-pollution/. See also the earlier statements: ‘Government Ministers ignoring ruling on air pollution’, Client Earth press release, 11/09/2015, at https://www.clientearth.org/government-ministers-ignoring-ruling-on-air-pollution, and ‘Government releases air pollution plans’, Client Earth press release, 12/09/2015, at https://www.clientearth.org/government-releases-air-pollution-plans/
[16] Ibid: see [2].
[17] Evidence of the Treasury’s involvement emerged at a hearing at the High Court in October 2016. See: ‘Government denied clean air zones to dangerously polluted UK cities’, Client Earth press release, 26/10/2016. Accessed from: https://www.clientearth.org/government-denied-clean-air-zones-dangerously-polluted-uk-cities/.
[18] ‘”Arrogant” UK Government response to air quality will face court challenge’, Client Earth press release, 17/12/2015. Accessed from: https://www.clientearth.org/arrogant-uk-government-response-to-air-quality-will-face-court-challenge/.
[19] ‘ClientEarth takes government back to court over killer air pollution’, Client Earth press release, 18/03/2016. Accessed from: https://www.clientearth.org/clientearth-takes-government-back-court-killer-air-pollution/.
[20] Air Quality, House of Commons Environment, Food and Rural Affairs Committee, 27 April 2016. Accessed as a PDF from https://publications.parliament.uk/pa/cm201516/cmselect/cmenvfru/479/479.pdf . For a summary, see Damian Carrington, ‘MPs: UK air pollution is a “public health emergency”‘, The Guardian, 27/04/2016, at https://www.theguardian.com/environment/2016/apr/27/uk-air-pollution-public-health-emergency-crisis-diesel-cars.
[21] Ibid [20], Paragraph 43. The EU’s decision to implement ‘real world’ tests was announced in a press release in February 2016. See: ‘Vehicle emissions in real driving conditions: Council gives green light to second package’, European Council press release, 12/02/2016. Accessed from: http://www.consilium.europa.eu/en/press/press-releases/2016/02/12-vehicle-emissions-in-real-driving-conditions-2nd-package/. The European Commission’s regulations on vehicle emissions are summarised in ‘Air pollution from the main sources – Air emissions from road vehicles’ at http://ec.europa.eu/environment/air/sources/road.htm. The EC says: “To deal with high on-road emissions from passenger vehicles, where a significant discrepancy with the laboratory testing has been confirmed in recent years, the Commission has developed the Real-Driving Emissions test procedure, which will apply from 1 September 2017.” On emission limits, the EC says: “Euro 5 and 6 Regulation 715/2007/EC sets the emission limits for cars for regulated pollutants, in particular nitrogen oxides (NOX, i.e. the combined emissions of NO and NO2 ) of 80mg/km.” Part of the problem of setting emission limits is the availability of accurate data on ‘real world’ driving conditions. However, an article in the Guardian which appeared shortly before the Efra report reported that “the most comprehensive set of data yet published” showed that “97% of all modern diesel cars emit more toxic nitrogen oxide pollution than the official limit when driven on the road.” See Damian Carrington, Gwyn Topham and Peter Walker, ‘Revealed: nearly all new diesel cars exceed official pollution limits’, The Guardian, 23/04/2016. Accessed from: https://www.theguardian.com/business/2016/apr/23/diesel-cars-pollution-limits-nox-emissions. The Guardian report says that the new data followed the publication earlier in the week by the Department for Transport of emissions results for 37 vehicles, “all of which emitted more NOX on the road than the official limit – but the new data covers more than 250 vehicles in more stringently standardised road conditions. The data was collected and published by testing specialists Emission Analytics and is available at http://equaindex.com/.
[22] Damian Carrington, ‘Sadiq Khan joins air pollution court case against UK government’, The Guardian, 26/05/2016. Accessed from: https://www.theguardian.com/environment/2016/may/26/sadiq-khan-joins-air-pollution-court-case-against-uk-government.
[23] Adam Vaughan and Esther Addley, ‘Boris Johnson “held back” negative findings of air pollution report’, The Guardian, 17/05/2016. Accessed from: https://www.theguardian.com/environment/2016/may/17/boris-johnson-held-back-negative-findings-of-air-pollution-report.
[24] Ibid: see [22].
[25] Paragraph 86 in ‘Approved Judgment of the High Court: ClientEarth (Claimant) v Secretary of State for the Environment Food and Rural Affairs (Defendant)’, Citation Number: [2016] EWHC 2740, Case Number: CO/1508/2016, 02/11/2016. Accessed as a PDF from: https://www.documents.clientearth.org/wp-content/uploads/library/2016-11-02-high-court-judgment-on-clientearth-no-2-vs-ssefra-on-uk-air-pollution-plans-ext-en.pdf.
[26] Ibid [25], Paragraph 85.
[27] Ibid [25], Paragraph 66.
[28] Ibid [25], Paragraph 50.
[29] ‘ClientEarth wins air pollution case in High Court’, Client Earth press release, 02/11/2016. Accessed from: https://www.clientearth.org/major-victory-health-uk-high-court-government-inaction-air-pollution/.
[30] ‘High Court gives UK Government 8 months to draw up fresh air quality plan,’ Client Earth press release, 21/11/2016. Accessed from: https://www.clientearth.org/high-court-gives-uk-government-8-months-draw-fresh-air-quality-plan/.
[31] The procrastination episode is detailed in a string of press releases from Client Earth. See:
(a) ‘UK Government makes last-ditch bid to delay essential clean air plans’, Client Earth press release, 25/04/2017. Accessed from: https://www.clientearth.org/uk-government-makes-last-ditch-bid-delay-essential-clean-air-plans/.
(b) ‘High Court orders UK air pollution hearing’, Client Earth press release, 25/04/2017. Accessed from: https://www.clientearth.org/high-court-orders-air-pollution-hearing/.
(c) ‘High Court rules air pollution plans must be published before General Election’, Client Earth press release, 27/04/2017. Accessed from: https://www.clientearth.org/judge-refuses-uk-government-permission-delay-air-quality-plan-til-general-election/.
The UK Government chose not to appeal the High Court ruling. See: ‘Government will not appeal High Court ruling on air pollution plan deadline’, Client Earth press release, 02/05/2017. Accessed from: https://www.clientearth.org/government-will-not-appeal-high-court-ruling-air-pollution-plan-deadline/.
[32] ‘UK Government releases ‘weak’ air quality plans’, Client Earth press release, 05/05/2017. Accessed from: https://www.clientearth.org/uk-government-releases-weak-air-quality-plans/.
[33] ‘ClientEarth challenges UK government’s air pollution consultation’, Client Earth press release, 31/05/2017. Accessed from: https://www.clientearth.org/clientearth-challenges-uk-governments-air-pollution-consultation/.
[34] ‘High Court judgment on air pollution a “shot across the bows” of government’, Client Earth press release, 05/07/2017. Accessed from: https://www.clientearth.org/high-court-judgment-air-pollution-shot-across-bows-government/.
[35] Ibid: see [1].
[36] Grace Rahman, ‘Motorways could be covered with large tunnels to trap pollution’, The Independent, 03/08/2017. Accessed from: http://www.independent.co.uk/environment/pollution-motorway-tunnels-cover-roads-air-quality-highways-england-a7874221.html.
[37] Highways England Air Quality Strategy, 02/08/2017. Available as a PDF from: https://www.gov.uk/government/publications/highways-england-air-quality-strategy. The agency also says it has previously trialled paint that ‘eats’ oxides of nitrogen alongside the road network.
[38] Rob Merrick, ‘Petrol-diesel car ban: Government plan dismissed as “smokescreen” after key air pollution policies dumped’, The Independent, 26/07/2017. Accessed from: http://www.independent.co.uk/news/uk/politics/petrol-diesel-car-ban-government-air-pollution-2040-policies-michael-gove-environment-groups-deaths-a7860361.html.
[39] Ibid: see [1].
[40] ‘Gove falls at first hurdle on air pollution, say environmental lawyers’, Client Earth press release, 26/07/2017. Accessed from: https://www.clientearth.org/gove-falls-first-hurdle-air-pollution-plans-environmental-lawyers/.
[41] ‘ClientEarth demands urgent clarification on UK government’s air quality plans’, Client Earth press release, 16/08/2017. Accessed from: https://www.clientearth.org/clientearth-demands-urgent-clarification-uk-governments-air-quality-plans/.
[42] Liam Kirkaldy, ‘ClientEarth calls for clarity on Scottish Government air pollution plans’, Holyrood Magazine, 03/08/2017. Accessed from: https://www.holyrood.com/articles/news/clientearth-calls-clarity-scottish-government-air-pollution-plans. In an earlier press release, Client Earth said the Government’s air quality plan “fails to ensure proper measures will clean up illegal pollution in Scotland, Wales and Northern Ireland” and that it would be raising the lack of detail about the devolved regions at the High Court hearing on 5th July 2017. See: ‘UK Government has a duty to protect all UK citizens from pollution’, Client Earth press release, 03/07/2017. Accessed from: https://www.clientearth.org/uk-government-duty-protect-all-citizens-air-pollution-environmental-lawyers/.
[43] Rowena Mason and Damian Carrington, ‘Government’s air quality plan branded inadequate by city leaders, The Guardian, 26/07/2017. Accessed from: https://www.theguardian.com/environment/2017/jul/26/governments-air-quality-plan-is-cynical-headline-grabbing-say-critics.
[44] ‘Diesel and petrol car ban: Clean air strategy “not enough”‘, BBC News, 26/07/2017. Accessed from: http://www.bbc.co.uk/news/uk-40731164.
[45] Ibid: see [43].
[46] Ian Johnston, ‘Why the Government’s plan to ban petrol and diesel cars may not achieve anything’, The Independent, 26/07/2017. Accessed from: http://www.independent.co.uk/environment/petrol-diesel-car-ban-government-air-pollution-2040-may-not-achieve-anything-environment-a7860971.html.
[47] Ibid: see [43].
[48] Ibid: see [44].
[49] Ibid: see [46].
[50] Ibid: see [43].
[51] Ibid: see [46].
[52] For a summary, see [38].
[53] Ibid: see [38].
[54] ‘Environment: Commission takes action against UK for persistent air pollution problems’, European Commission press release, 20/02/2014. Accessed from: http://europa.eu/rapid/press-release_IP-14-154_en.htm. The Commission gave the UK two months to respond before raising the issue with the European Court of Justice, but Client Earth reported in September 2015 that the case was on hold pending the conclusion of the Client Earth case (see [9]).
[55] ‘Commission warns Germany, France, Spain, Italy and the United Kingdom of continued air pollution breaches’, European Commission press release, 15/02/2017. Accessed from: http://europa.eu/rapid/press-release_IP-17-238_en.htm.
[56] ‘Air pollution “final warning” from European Commission to UK’, BBC News, 1151/02/2017. Accessed from: http://www.bbc.co.uk/news/uk-politics-38980510.

Future of EU Nature Directives still uncertain following appointment of new Environment Secretary

Leaving the EU will help the environment, says Michael Gove

But the Government’s Repeal Bill fails to ease concerns over environmental protection

July 28th 2017

In a speech delivered in Woking at the UK headquarters of the WWF on Friday 21st July, Michael Gove, the new Secretary of State for the Environment, Food and Rural Affairs, presented his vision of a ‘Green Brexit.’ Michael Gove was appointed to the role on Sunday 11th June, following the General Election on Thursday 8th June 2017 and the subsequent Cabinet reshuffle. His appointment prompted a storm of protest, anger and dismay among environmental groups and campaigners, and was labelled as “bad news” by Liberal Democrat MP Ed Davey, formerly Secretary of State for Energy and Climate Change in the coalition government. Speaking to the Guardian, he said it was like “putting the fox in charge of the hen house.” Anyone who cared about the environment should be “deeply worried” by Gove’s appointment, he said. [1]

The Back Story: Michael Gove and climate change

In his former post, Ed Davey had a fundamental disagreement with Michael Gove in 2013 when Gove, then serving as Education Secretary, wanted to remove climate change from the National Curriculum for Geography, arguing that it should be taught as a topic within science. Michael Gove said this was part of a drive to slim down an unwieldy curriculum and to give teachers more flexibility, but he was forced to abandon the plans after a sustained campaign from environmentalists and teachers and intensive lobbying by Ed Davey, who argued that the topic would be downgraded by the plans, while the existence of climate change would be made more problematic as a result. [2] Responding to Gove’s appointment, environmentalists were also quick to point out that Michael Gove had a poor track record when it came to voting on important environmental issues, including measures to tackle climate change. In May 2016, for instance, Michael Gove voted not to reduce the permitted levels of carbon emissions from new homes. [3]

EU Habitats Directive is “holding back development,” says Michael Gove

Michael Gove has also criticised the rationale of the EU Nature Directives and suggested that these could be scrapped once the UK leaves the EU. On Wednesday 22nd March this year, a week before the Government presented its intention to leave the EU by triggering Article 50, Michael Gove spoke to a business audience at an event in Central London hosted by Advertising Week Europe. “If there are regulations which hold any business here back, we now have the potential to amend or even if necessary rescind them,” he said. He singled out the EU Habitats Directive in particular, and said that EU rules concerning the building of new homes in environmentally sensitive areas, including his own constituency, were holding back developments:

“I am very, very keen – I may be odd in this respect as a Conservative MP – on having more homes built in my constituency,” he said. “It’s a social and economic good. But homes built in my constituency are governed by the Habitats Directive. The Habitats Directive holds that if you build a home within five kilometres of a particular type of terrain, heathland, then you have to allocate, at the same time, something called suitable alternative natural green space to offset the environmental impact.” The directive “massively increases the cost and the regulatory burden for housing development,” he said. “As a result my constituents, and perhaps your children, find homes more expensive and mobility in this country impeded.” [4]

Speaking to the Guardian following his appointment, Caroline Lucas MP, co-leader of the Green Party, said it was hard to “think of many politicians as ill-equipped for the role of environment secretary as Michael Gove. His record of voting against measures to halt climate change and his attempt to wipe the subject from our children’s curriculum show him entirely unfit to lead our country in tackling one of the greatest threats we face… As we enter Brexit negotiations, Gove’s past suggestion we scrap vital EU environmental protections becomes even more concerning.” [5]

But the new Secretary wants to “listen and learn”

However, speaking on the Today programme on BBC Radio Four shortly after his appointment, Michael Gove said that his brief was to enhance the environment and that he wanted to listen and to learn. Martin Harper, the RSPB’s Director of Conservation, was quick to take him up on the suggestion. In an article posted the following day (Wednesday 14th June), he gave examples of five RSPB projects intended to help the new Secretary “devise the right plan to deliver the Government’s manifesto commitment to pass on the environment in a better state to the next generation.” The examples focused on food (the RSPB’s intensive arable farm near Cambridge, which has helped to increase the number of farmland birds while also maintaining profitability), housing (the RSPB’s partnership with Barratt Homes, beginning with a pioneering housing development at Aylesbury), water (the Sustainable Catchment Management Programme in the Peak District, in partnership with United Utilities), inspiration (the Wallasea Island Wild Coast project in Essex, “the largest managed realignment project in Europe”), and money (the impact of Darwin grants and EU Life funding). [6]

On that Wednesday, Martin Harper met with Michael Gove at Rainham Marshes, one of eleven RSPB reserves on the side of the Thames, and had what he describes as “a great conservation.” Martin Harper says he had been primed beforehand by Michael Gove’s wanting answers to the question: “If we want the UK’s approach to environmental protection and enhancement to be seen as the best in the world, what does that mean and what does it look like at a local, national and global level?” The conversation discussed marine conservation areas, deforestation, environmental supply chains, migratory birds, natural capital accounting, the Common Agricultural Policy, spatial planning, the National Planning Policy Framework, and local nature reserves (among other things). Martin Harper concludes: “While Mr Gove is still only in the fourth day of his new job, he is clearly keen to get out, meet people and see places. He also asked the right questions, took notes and listened. These are good signs.” [7]

Also on that Wednesday (14th June), Dr Euan Dunn, the RSPB’s Principal Marine Advisor, posted an article on new research led by the RSPB which showed a correlation between the breeding success (or failure) of kittiwakes on the Yorkshire coast and the abundance (or otherwise) of sandeels at Dogger Bank. [8] The sandeels are commercially fished by Denmark, under the terms of the Common Fisheries Policy. The research was published in the journal Aquatic Conservation: Marine and Freshwater Ecosystems on June 2nd. “There is a lively debate about how the UK should manage its fisheries once the UK leaves the European Union,” Dr Euan Dunn said. And Michael Gove added more substance to this debate when, on July 2nd, he announced the Government’s intention to withdraw from the London Fisheries Convention.

The Common Fisheries Policy and sustainability

The London Fisheries Convention is an agreement between the UK, France, Belgium, Germany, Ireland and the Netherlands that allows those countries to fish within 6 and 12 nautical miles of each other’s coastlines. The agreement was signed in 1964 before the UK joined the EU and became party to the Common Fisheries Policy, which allows all EU countries to fish within 12 and 200 nautical miles off the UK coastline. On July 2nd, Michael Gove announced that the Government would be signalling its intention to withdraw from the London Fisheries Convention by triggering the two-year process of leaving. He said that leaving the EU would also mean leaving the Common Fisheries Policy. “We can then extend control of our waters up to 200 miles or the median line between Britain and France, and Britain and Ireland,” he said. The Common Fisheries Policy, which sets fish quotas as well as fishing rights, has been an environmental disaster, he said, “and one of the reasons we want to change it is that we want to ensure that we can have sustainable fish stocks for the future.” [9]

As reported by the Guardian, the news was welcomed by the National Federation of Fishermen’s Organisations, but treated with caution by WWF UK, Greenpeace UK, and environmental lawyers Client Earth. Greenpeace UK said that sustainable fishing would only be achieved by government support for locally-based fishing communities, while Client Earth and the WWF said that maintaining sustainable fish stocks required cooperation and shared management rather than standing alone and unilaterally withdrawing from agreements. [10]

Was Michael Gove still listening and learning? In his keynote speech delivered last week (July 21st), he touched on many of the topics discussed in his conversations with the RSPB, including marine conservation. On fishing, he said that fishing had “powerfully engaged” his emotions, citing his personal connections with the industry. “My father, grandfather and great grandfather all made their living from the sea,” he said. “My great grandfather was a fisherman, my grandfather and father fish merchants. My father’s business closed in the 1980s when I was a schoolboy, one of many that closed after this country accepted EU control of our waters through the Common Fisheries Policy. The CFP has had a profound impact on the UK’s coastal communities. But its most profound impact has been on the sustainability of our fish stocks.” [11]

He said that, though some improvements had been made, it was still the case that 40% of fish stocks in the Atlantic, North Sea and Baltic Sea are being fished at unsustainable levels. By leaving the CFP, he argued, Britain will be taking back control of its territorial waters, “granting access to other countries and allocating quotas all on the basis of what is scientifically sustainable.” This, in turn, he added, should lead to the revival of the UK’s coastal communities and a sustainable fishing industry.

“I am an environmentalist,” says Michael Gove

In this keynote speech, Michael Gove seemed determined to appease the concerns over his appointment and to display his environmental credentials. “I am an environmentalist,” he declared, and his speech was addressed to environmentalists first and foremost. He praised the work of organisations such as the WWF, the RSPB, the Wildlife Trusts, Greenpeace and Friends of the Earth – many of whom were represented in the audience – for their “campaigning energy and idealism” which he said was “vital to ensuring we continue to make progress in protecting and enhancing our environment.”

He gave two reasons for his environmentalism. “I am an environmentalist first because I care about the fate of fellow animals,” he said. He spoke about drawing inspiration from nature and quoted a number of literary sources in his speech, and he spoke about growing up between the North Sea and the Cairngorms, spending weekends in the hills and weekdays with his head in Wordsworth and Hardy, Gibbon and Edward Thomas, and growing up “with an emotional attachment to natural beauty which inevitably influences my feelings towards questions on everything from architecture to ivory.” But, he said, “I am also an environmentalist because of hard calculation as well as the promptings of the heart.” If we don’t maintain and enhance the natural world around us, he explained, we shall find ourselves facing disaster.

It was in this latter context that he spoke about climate change, citing the Pulitzer Prize-winning author Jared Diamond, and the risks of flood damage, water shortages, enforced migration, habitat destruction, economic disasters, interstate conflict, and many other threats faced by the globe if action was not taken. “Now, it is because environmental degradation is such a threat to future prosperity and security that I deeply regret President Trump’s approach towards the Paris Agreement on Climate Change,” he said. He “sincerely hoped” that the President would have a change of heart. “International cooperation to deal with climate change is critical if we’re to safeguard our planet’s future and the world’s second biggest generator of carbon emissions cannot simply walk out of the room when the heat is on,” he said.

The Common Agricultural Policy and the future of farming

But the main theme of his speech was the opportunities for greater environmental protection, presented by the UK’s decision to leave the EU. He acknowledged that the EU had “in a number of ways” been a force for environmental good: “Our beaches are cleaner, habitats are better protected and pesticides more effectively regulated as a consequence of agreements that we reached since we entered the EU. And I have no intention of weakening the environmental protections that we have put in place while in the European Union.” However, he singled out the Common Agricultural Policy and the Common Fisheries Policy as “the two areas where the EU has most clearly failed to achieve its stated environmental goals.”

Michael Gove spoke at length on the failings of the Common Agricultural Policy and the future of farming once the UK leaves the EU, restating the Government’s pledge to match the £3 billion that farmers currently receive in support from the EU until 2022. On the failings of the CAP, he said: “The Common Agricultural Policy rewards size of land-holding ahead of good environmental practice, and all too often puts resources in the hands of the already wealthy rather than into the common good of our shared natural environment. It also encourages patterns of land use which are wasteful of natural resources and often intrinsically poor value rather than encouraging imaginative and environmentally enriching alternatives.” He said that farmers themselves had seen how the CAP “holds back productivity, impedes progressive environmental stewardship, and works against their natural instincts.”

He spoke about a recent report from the Adaptation Sub-Committee of the Committee on Climate Change, which suggests that EU-inspired farming approaches have led to soil degradation and decreasing fertility. “The effect is most noticeable in what has been some of our most fertile growing soil in the Fens,” he said, “where a combination of the draining of the peat and the disappearance of hedges and trees over the years has led to a thinning of productive earth. According to the Committee’s report, Britain has lost 84% of fertile topsoil since 1850 and the erosion continues in some areas at between 1cm and 3cm a year.” This was obviously unsustainable, he said, “which is why we need to take the opportunity that being outside the Common Agricultural Policy will give us to use public money to reward environmentally-responsible land use.”

The Government would continue to support farming, he said, not least because the UK is dependent on agriculture for the production of high quality food, and he mentioned hill farmers in particular, saying support was critical for the management of upland areas and landscapes such as the Lake District. However, future government support would depend on reform, he said. Conversations with farmers, landowners, and organisations such as the NFU, had led him to conclude “there is a growing appetite for a new system of agricultural support” which prioritises environmental protection and enhancement. He talked about higher standards of animal welfare, support for woodland creation and the Government’s aim of planting 11m. more trees, and support for protecting the range of habitats that will encourage biodiversity (including heathland, bog, meadow and marsh). “Now doing this well depends on developing the skills and farming practices of landowners and managers,” he said. “And understanding how to create and protect habitats should be as much a part of good farming as understanding the latest crop and soil science.”

Ambition: Michael Gove sets out his vision of a Greener Britain

Raising standards was a recurring theme in Michael Gove’s speech. Leaving the EU presented Britain with the historic opportunity to “establish ourselves as the home of the highest environmental standards,” he said. It opened up the opportunity to review government policies on agriculture, land use, biodiversity, woodlands, marine conservation, fisheries, pesticide licensing, chemical regulation, animal welfare, habitat management, waste, water purity, air quality, “and so much more.” Elsewhere in his speech, marine conservation, soil protection, river management, and bio-security were added to the list. Outside the EU, “there is scope for Britain to be a global leader in environmental policy across the board,” he said. His vision was for Britain to develop “global gold standard policies” which would be informed by “rigorous scientific analysis.” And in setting out a vision of the future, he said: “We should not aim simply to halt or slow the deterioration of our environment. We must raise our ambitions so we seek to restore nature and reverse decline.”

A packed agenda

The list of environmental issues that the Environment Secretary wants to tackle was wide-ranging. It included, for instance, waste management and recycling, with the suggestion that leaving the EU could mean a smarter and more targeted approach to incentivising recycling; one that could be based on environmental impact and value of the material, rather than a weight-based system. In the immediate term, a number of concrete proposals were mentioned, which were at various stages of implementation:

Pollution from plastic products: On the day of his speech (July 21st), the Government would be publishing its response to a consultation on the use of micro-plastics (known as microbeads) in personal cosmetic products, which end up in the oceans with the potential to cause harm to marine life. Legislation on banning the use of such products would be introduced later this year. The Environment Secretary also wanted to reduce the amount of plastic bottles entering UK waters. [12]

The Air Quality Plan: Due to be published at the end of this month following a court ruling. [13]

The 25-year Plan for the Natural Environment, which has been “longer in gestation than a baby elephant”: The Environment Secretary has written to the Chair of the Natural Capital Committee, seeking advice on what the Plan “should aim to achieve and how it should seek to do so,” hopefully including a rigorous methodology for setting goals and reporting success or failure. The Committee has agreed to provide feedback by September 2017, “laying the ground for subsequent publication” by Defra. [14]

The Clean Growth Plan: Due to be launched this autumn 2017 by the Department for Business, Energy and Industrial Strategy. The plan “should reinforce our ambition to be the home of the most economically and environmentally ambitious policies in the areas of clean green technology, from energy generation to transport, the circular economy to house building.”

• The Government’s second National Adaptation Programme: In 2018, the Environment Secretary will be publishing “a comprehensive plan of action to improve our resilience to climate change.”

Marine sanctuaries: Plans to complete a ‘Blue Belt’ of marine protected areas around the UK, together with plans for similar areas around Britain’s overseas territories, would see the creation of the world’s largest marine sanctuaries. The aim is to deliver over 4m. square kilometres of protected maritime areas by 2020. The Government will also continue to support the moratorium on commercial whaling, he said.

Defra versus the Government?

Michael Gove did not have long to wait for responses to his speech. Damien Carrington, the Guardian’s Environment Editor, said: “Gove’s vision for the environment is undoubtedly ambitious but it is at odds with much government action – making it real will be a gargantuan task.” [15] To quote one instance, he pointed to an article in the Independent on the Government’s plan to give the UK’s most energy-intensive companies a £130m exemption from the climate change fund, which campaigners argue will mean some of the country’s biggest polluters will end up paying less while ordinary customers will end up making up the difference. [16] This “£130m bung, shifting the costs of supporting new clean energy on to the public,” was announced the day before Michael Gove promised to take on vested interests, he says. On reforming the farming subsidy regime, Damien Carrington said this would also prove a difficult task given that the Government had already demonstrated its inability to pay EU subsidies on time. “Nonetheless,” he concludes, “Gove’s speech was important, rightly placing the environment at the heart of the nation’s and the world’s well-being, prosperity and security.”

Michael Gove has a reputation for dramatic changes of opinion, and it does seem remarkable that it was only in March that he was criticising the EU Habitats Directive for holding back development, singling out heathland in particular as a habitat in his own constituency that was hampering house building. Four months later, heathland joins the list of habitats that “need care and attention if they are to provide homes to the growing diversity of animal and plant life that we should wish to encourage.” ‘Habitats’ are mentioned eight times in his speech. And far from wanting to scrap the EU Nature Directives, he now says habitats are better protected because of EU regulation and he has no intention of weakening the environmental protections provided by the Directives. However, in March he was addressing business and not as a member of the Cabinet; last week he was addressing environmentalists as the new Environment Secretary. Should environmentalists believe that this keynote speech represents a sincere change of opinion based on a period of listening and learning?

Caroline Lucas of the Green Party is sceptical about his environmental credentials. Speaking to the Guardian’s Political Editor Jessica Elgot, she said: “Gove’s overture to the environment might make him sound like a keen defender of nature but his government’s actions suggest that protecting our natural world is a long way from the top of their priority list. There is an environment-shaped hole in the government’s Brexit plans. They failed to announce any kind of environmental protection bill in the Queen’s speech, and we still don’t know how they will transfer enforcement powers from EU institutions to the UK.” [17]

Martin Harper of the RSPB broadly welcomed the speech, saying it showed “personal commitment, a clear analysis as to why nature is in trouble, and an ambition to restore nature.” He also said Michael Gove was right in suggesting that farmers should be rewarded for restoring wildlife and protecting natural resources. [18] However, he also expressed concerns over the legal aspects of leaving the EU. “Michael Gove gave us an indication that he was prepared to look at how you replace the enforcement powers currently provided by the EU,” he says: “To do that he’s going to have to influence the current Repeal Bill to make sure not only do we maintain existing levels of protection afforded by EU law, but also that we work out how to ensure that the laws are then enforced.”

Legal Issues: The Government’s Repeal Bill

The Government’s European Union (Withdrawal) Bill (also known as the Repeal Bill) was published on 13th July. [19] The purpose of the Bill is to transfer all EU law into domestic law so that the law will be the same on the day of departing the EU as it was on the day before. In theory, this sounds like a simple operation, but the situation is far more complicated, as Martin Harper pointed out two weeks ago. Firstly, there is the question of underlying principles, including the “over-arching environmental principles enshrined in European Treaties, such as the polluter pays and the precautionary principle.” [20] If these vital principles are not also translated into domestic law, the UK’s environmental protection will be substantially watered down, he says. The Repeal Bill fails to guarantee that these key environmental principles will be transferred to domestic legislation.

Secondly, there is the problem of delegated powers and scrutiny. The laws cannot be transported in their entirety as they contain references to European agencies and institutions; hence some amendments will have to be made to change those references to new or existing domestic agencies and institutions. The Government plans to give Ministers delegated powers to make such amendments. However, there is no guarantee of parliamentary scrutiny of such changes, or that these delegated powers will not be used to make substantial changes. Additionally, the Repeal Bill fails to provide a guarantee that future changes to these transferred EU environmental laws will be subject to full parliamentary scrutiny, so there is no certainty that delegated powers will not be used in the future to make changes to their scope or their purpose.

Thirdly, there is the question of enforcement. Currently, it is EU institutions that monitor compliance with environmental legislation. Martin Harper says that leaving the EU will leave us with a large gap in governance: “The Repeal Bill fails to provide any certainty as to how important environmental standards and principles will be upheld. Instead an environmental fact sheet accompanying the Bill reiterates the government’s position that future enforcement of environmental protections will be done by judicial review and parliament. This is considerably weaker than the current powers exercised by the European Court of Justice.” [21] The European Court of Justice handles proceedings against EU member states who have failed to comply with their environmental obligations; it also has the power to impose financial penalties for non-compliance. There will be no equivalent enforcement body on leaving the EU.

However, on 3rd July (prior to the Bill’s publication), a group of lawyers announced they were taking steps to ensure that EU environmental protection mechanisms would not be jettisoned after the UK leaves the EU. The lawyers are members of the UK Environmental Law Association (UKELA) and the ‘task force’ is being led by Richard Macrory, Professor of Environmental Law at University College London. Speaking to the Guardian, he said: “The last thing we want to find in Britain is a whole lot of legal gaps in the protections… One of the most important functions of the EU has been to supervise how member states implement their obligations. These processes apply to all areas of law but the majority of cases have been brought in the environmental sector.” [22] On the question of what will replace the monitoring and enforcement role of EU institutions, he said. “The government response to date has been rather unimaginative and minimalist – they say we can rely on judicial reviews brought by NGOs. We will question whether relying on judicial review is a sufficient substitute for a more systematic and independent supervisory function performed by the Commission.”

Writing in the Guardian on the enforcement issue, Sandra Laville summarises the results of a House of Lords inquiry into the impact of Brexit on climate change and the environment. [23] The inquiry concluded that enforcement will need to be underpinned by judicial oversight and that existing domestic judicial review procedures may be inadequate and costly. In short, judicial reviews in domestic courts would not amount to a sufficient enforcement body: “The evidence… strongly suggests that an effective and independent domestic enforcement mechanism will be necessary in order to fill the vacuum left by the European Commission.” Sarah Mukherjee, Environment Director for Water UK (the body that represents water companies), told the inquiry that it was the ability to impose financial sanctions which focused government minds: “Governments pay a lot of attention to the risk of being infracted because it is very expensive and it is not brilliant for your reputation,” she said.

Moving the Goalposts: Limiting access to justice

A judicial review can cost thousands of pounds. Richard Macrory of UKELA compared this with a citizen complaint which an individual can take to the EC for the price of a stamp if they believe their government has not upheld environmental protections or broken laws relating to the environment. In a further development, the UK Government has made it even more difficult to mount legal challenges on environmental issues. Changes to the rules announced last November and introduced in February give judges the ability to increase or decrease the cap on costs midway through a case, making the costs of mounting a legal challenge uncertain. [24] People bringing environmental court cases will also have to provide more financial information. Environmental lawyers Client Earth say this will make an already arduous process even more difficult, while the introduction of uncertainty is contrary to the Aarhus Convention, a UN agreement which the UK has signed and is designed to ensure access to justice for environmental cases.

In response to these changes, Client Earth has joined forces with the RSPB and Friends of the Earth to mount a legal challenge. The case had an initial hearing at the High Court on Wednesday 19th July, two days before the new Environment Secretary made his keynote speech. David Wolfe QC, representing the three organisations, argued that the rules do not follow the spirit of the Aarhus Convention. Client Earth says: “The UK government must ensure environmental cases are not prohibitively expensive and they must remove or reduce financial and other barriers to access to justice.” [25] The case continues.

Given that the Government has now been defeated twice in a legal challenge to its plans to tackle air pollution, it would not be surprising to see a determined effort to defend its moves to make environmental cases more difficult to bring to court. Which is not a strong indicator that “leaving the EU will help the environment.” To quote Michael Gove: “Ultimately, the air we breathe, the water we drink, the food we eat and the energy which powers enterprise, are all threatened if we do not practice proper stewardship of the planet.” Fine words, but government actions make them sound rather hollow.

Acknowledgement

Photograph: RSPB Rainham Marshes, Visitor Centre © Copyright Paul Farmer and licensed for reuse under this Creative Commons Licence. Three days into his new role as Environment Secretary, Michael Gove met with Martin Harper of the RSPB at Rainham Marshes on 14th June as he embarked on a project of ‘listening and learning.’ Many of the topics discussed found their way into his keynote speech delivered at the WWF UK headquarters on 21st July.

Notes

[1] ‘Michael Gove as environment secretary is “fox in charge of hen house”‘, Matthew Taylor, The Guardian, 12 June 2017. Retrieved from: https://www.theguardian.com/politics/2017/jun/12/michael-gove-entirely-unfit-to-be-environment-secretary-says-greens.

[2] ‘Michael Gove abandons plans to drop climate change from curriculum’, Patrick Wintour, The Guardian, 5 July 2013. Retrieved from: https://www.theguardian.com/education/2013/jul/05/michael-gove-climate-change-geography-curriculum.

[3] ‘Climate Change: Michael Gove generally voted against measures to prevent climate change’, They Work For You. Retrieved from: https://www.theyworkforyou.com/mp/11858/michael_gove/surrey_heath/divisions?policy=1030.

[4] ‘Slash EU regulations on wildlife protection and drug safety trials after Brexit, Michael Gove urges’, Jon Stone, The Independent, 25 March 2017. Retrieved from: http://www.independent.co.uk/news/uk/politics/brexit-eu-regulations-michael-gove-environment-drugs-a7649041.html.

[5] Ibid: see [1].

[6] ‘A chance for the new Environment Secretary, Michael Gove, to “listen and learn”‘, Martin Harper, RSPB, 14 June 2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/06/14/a-chance-for-the-new-environment-secretary-michael-gove-to-listen-and-learn.aspx. On the Aylesbury development, see the ENA UK article ‘Barratt Developments and RSPB sign national agreement for wildlife-friendly housing development’.

[7] ‘A chance for the new Environment Secretary, Michael Gove, to “listen and learn” (part 2)’, Martin Harper, RSPB, 15 June 2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/06/15/a-chance-for-the-new-environment-secretary-michael-gove-to-listen-and-learn-part-2.aspx.

[8] ‘Protecting our Seabirds in Post-Brexit Waters’, Euan Dunn, RSPB, 14 June 2016. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/06/14/protecting-our-seabirds-in-post-brexit-waters.aspx. The research paper ‘Kittiwake breeding success in the southern North Sea correlates with prior sandeel fishing mortality’ was published in Aquatic Conservation: Marine and Freshwater Ecosystems and is available at http://onlinelibrary.wiley.com/doi/10.1002/aqc.2780/full.

[9] ‘UK to “take back control” of waters after exiting fishing convention’, Frances Perraudin, The Guardian, 2 July 2017. Retrieved from: https://www.theguardian.com/environment/2017/jul/02/uk-take-back-control-london-fisheries-convention-michael-gove.

[10] Ibid: see [9].

[11] ‘The Unfrozen Moment – Delivering A Green Brexit’, Michael Gove, 21 July 2017. Retrieved from: https://www.gov.uk/government/speeches/the-unfrozen-moment-delivering-a-green-brexit.

[12] See the ENA UK article ‘New research shows cosmetic products contain large quantities of micro-plastics’.

[13] In April 2015, the UK Supreme Court ordered the UK Government to take immediate action to tackle air pollution following a successful legal challenge from environmental lawyers Client Earth. The lawyers went to court again when the Government’s plans published in December 2015 were deemed inadequate. Client Earth says levels of nitrogen dioxide are over the legal limit in 37 out of 43 zones in the UK, as defined by EU standards. The Government’s latest plans were published two days ago (26th July). For the full saga, see ClientEarth.

[14] On the 25-year plan for the natural environment, see the ENA UK article ‘Defra responds to recommendations of Natural Capital Committee’.

[15] ‘Michael Gove’s green dream: like Brexit, the reality awaits’, Damien Carrington, The Guardian, 21 July 2017. Retrieved from: https://www.theguardian.com/environment/2017/jul/21/michael-goves-green-dream-like-brexit-the-reality-awaits.

[16] ‘UK’s most energy-intensive companies to get £130m exemption from climate change fund’, Ian Johnston, The Independent, 20 July 2017. Retrieved from: http://www.independent.co.uk/environment/uk-energy-intensive-pollution-companies-climate-change-fund-exemption-targets-regulation-global-a7851326.html.

[17] ‘Michael Gove “deeply regrets” Trump’s approach to Paris climate agreement’, Jessica Elgot, The Guardian, 21 July 2017. Retrieved from: https://www.theguardian.com/politics/2017/jul/21/michael-gove-farmers-must-prove-they-deserve-subsidies-after-brexit.

[18] ‘A reflection on Michael Gove’s first major environment speech’, Martin Harper, RSPB, 21 July 2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/07/21/an-ambitious-start-from-michael-gove.aspx.

[19] The European Union (Withdrawal) Bill (commonly known as the Repeal Bill) is available as a PDF from the UK Parliament website at https://www.publications.parliament.uk/pa/bills/cbill/2017-2019/0005/18005.pdf.

[20] ‘Great or otherwise, the Repeal Bill is a big deal for nature’, Martin Harper, RSPB, 12 July 2017. Retrieved from:
http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/07/12/great-or-otherwise-the-repeal-bill-is-a-big-deal-for-nature.aspx
. The precautionary principle has a dedicated website at ‘The Precautionary Principle’.

[21] ‘Initial reaction to the Repeal Bill’, Martin Harper, RSPB, 13 July 2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/07/13/initial-reaction-to-the-repeal-bill.aspx.

[22] ‘Lawyers plan to stop UK dropping EU rules on environment after Brexit’, Sandra Laville, The Guardian, 3 July 2017. Retrieved from: https://www.theguardian.com/environment/2017/jul/03/lawyers-plan-to-stop-uk-dropping-eu-rules-on-environment-after-brexit-taskforce-protections-law. For information on the UK Environmental Law Association, see UKELA.

[23] Ibid: see [22]. The House of Lords report which followed their inquiry was published on 14th February 2017 and is available as a PDF from the UK Parliament website at https://publications.parliament.uk/pa/ld201617/ldselect/ldeucom/109/109.pdf.

[24] ‘New UK rules make it harder to bring environmental court cases’, Client Earth, 23 November 2016. Retrieved from: https://www.clientearth.org/new-uk-rules-make-harder-bring-environmental-court-cases/.

[25] ‘New government rules on environmental cases “move financial goalposts”, court hears’, Client Earth, 20 July 2017. Retrieved from: https://www.clientearth.org/new-government-rules-environmental-cases-move-financial-goalposts-court-hears/.

Residents of a West Yorkshire village in a six-year legal battle over flood risk and drainage

Bradford Council consistently ignores our concerns, say campaigners

Will the EFRA Committee’s recommendations on sustainable drainage have any impact on future planning decisions?

June 10th 2017

The House of Commons recently published a report on the Government’s implementation of certain aspects of the Flood and Water Management Act 2010, with a particular focus on sustainable drainage systems (SuDS). The report follows an inquiry by the Environment, Food and Rural Affairs (EFRA) Committee into those aspects of the 2010 Act which have either not been fully implemented or not been implemented at all. [1]

Summarising progress on achieving SuDS objectives, the report states: “The Government’s policy objective is to ensure that sustainable drainage systems are provided in new major developments where appropriate to minimise surface water contributing to flooding… The Government acknowledges that sustainable drainage schemes can be built and maintained as cost-effectively as traditional drainage.” However, the report continues, submissions to the Committee’s inquiry, almost without exception, concluded that policies were failing to achieve this objective.

The Committee’s inquiry found that too few schemes are being installed in new developments while too many schemes are failing to deliver maximum benefits for biodiversity, water quality and amenity. The Committee recommends a strengthening of the planning system to ensure high-quality schemes are installed in all new developments of more than one property. The report also recommends making technical standards for SuDS construction a statutory requirement, which it says would provide a stronger basis for enforcement.

The report stops short at this stage in calling for the setting up of SuDS Approval Bodies, as outlined in Schedule 3 of the 2010 Act. However, it calls on the incoming Government to demonstrate a significant improvement in the numbers and quality of SuDS schemes installed by the end of 2018, and the Committee issues a note to its successor: “Our successor Committee in the next Parliament may wish to reconsider recommending commencement of Schedule 3 provisions if it is not satisfied that sufficient progress has been made by then.”

Schedule 3 of the Flood and Water Management Act 2010 provides a definition of sustainable drainage. Paragraph 2 states: “‘Sustainable drainage’ means managing rainwater (including snow and other precipitation) with the aim of (a) reducing damage from flooding, (b) improving water quality, (c) protecting and improving the environment, (d) protecting health and safety, and (e) ensuring the stability and durability of drainage systems.” Schedule 3 has not been implemented, the Government having decided that the regulation of SuDS schemes would be more efficiently achieved via the planning system rather than by a parallel system of approval bodies. However, this definition, and the extent to which a sustainable drainage scheme should improve the environment, including the reduction of an existing flood risk, has been the subject of a long-running legal dispute.

West Yorkshire: A legal dispute over sustainable drainage

Proposals to build housing near Menston, a village in West Yorkshire, have been the subject of a long legal battle between local residents and Bradford Council, with sustainable drainage and flooding being the focus of the dispute. The residents held a referendum several years ago on proposals to develop two sites near the village, Derry Hill and Bingley Road. A large majority (98%) voted against the proposals and 2,000 letters of objection were submitted to Bradford Council. Residents argued that both sites suffer from groundwater flooding and claimed that the risk of flooding in the area would be increased by the proposed developments. The claims were supported by an independent expert on flooding, Dr Duncan Reed. [2] However, in August 2014 Bradford Council awarded planning permission to Barratt Homes to build 173 homes on the Derry Hill site, which prompted residents to take legal action. Events then unfolded as follows.

September 2014: Judicial Review

Law firm Schofield Sweeney begin legal proceedings on behalf of the Menston Action Group, citing two grounds for a judicial review of Bradford Council’s decision regarding Derry Hill. The primary ground is that the “sustainable drainage principles” mentioned in Condition 15 of the Council’s planning conditions require the developer to put forward a drainage scheme that addresses the potential improvement of flooding issues around the Derry Hill site. The lawyers argue that the sustainable drainage scheme proposed by Barratt Homes fails to meet these objectives and therefore the Council’s decision to award planning permission was unlawful. The second ground questions the validity of the procedure adopted by Bradford Council in making its decision.

January 2015: Administrative Court

At the first stage of the judicial review proceedings, the Administrative Court rejects the primary ground for a judicial review of the Derry Hill decision but accepts the second ground for the case to go forward. The lawyers say they will appeal.

April 2015: Court of Appeal reinstates grounds

The lawyers persuade the Court of Appeal to reinstate the primary ground for a judicial review of the Derry Hill decision. The lawyers say: “Residents of Menston are desperately worried that the proposed development at Derry Hill will make flooding in Menston much worse.” They also state that the residents have raised more than £100,000 to fund their legal battle – “a necessity in what has become complex and high profile High Court litigation,” Schofield Sweeney said. Meanwhile, Bradford Council awards planning permission to Chartford Developments to build 12 homes on land at Bingley Road.

July 2015: High Court dismisses claim

The lawyers begin a second legal case against Bradford Council for its decision to award planning permission to Chartford Developments. The primary ground for a judicial review is similar to the claim in relation to Derry Hill and alleges that the Council improperly failed to consider the ability to alleviate existing flooding issues. The second ground alleges that the Council’s Regulatory and Appeals Committee was materially misdirected by Council officers when informed of the water storage proposals for the site. The lawyers say: “Residents have observed standing water on the Bingley Road site – referred to by them as ‘the lake’ – following prolonged rainfall and they are extremely concerned that this site is being developed.” [3] Meanwhile, later that month, the High Court delivers its verdict on the Derry Hill permission. The judge presiding over the case dismisses the claims of the Action Group, finding in favour of Bradford Council and upholding its decision to approve the drainage scheme submitted in 2014 by Barratt Homes. The lawyers say they will appeal. [4]

November 2015: Court of Appeal overturns High Court decision

The lawyers win a second victory at the Court of Appeal, which overturns the High Court decision and decides to allow a review of the Derry Hill decision to proceed on all grounds of challenge. The case will be considered by three judges at the Court of Appeal. [5]

July 2016: “Sustainable drainage principles” are discussed in the Court of Appeal

The Court of Appeal delivers its verdict on the Derry Hill decision. Lord Justice Lindblom explains the background to the case, including the flood risk assessment submitted by Barratt Homes and figures detailing the amount of run-off expected from the development, which the sustainable drainage scheme is designed to manage. Of the 27 planning conditions imposed by Bradford Council, 7 are related to drainage, and the one that forms the focus of the dispute is Condition 15 which includes the phrase “based on sustainable drainage principles.” Acting on behalf of the Action Group, Mr David Wolfe QC draws on Schedule 3 of the Flood Act 2010, which he says contains the only statutory source of a definition of ‘sustainable drainage’ and shows that this concept embraces the aspiration of improvement rather than merely maintaining the status quo. [6]

However, Lord Justice Lindblom outlines two guiding principles here in forming a judgement. The first: “It is not sufficient that a condition is related to planning objectives: it must also be justified by the nature or impact of the development permitted.” And the second: “A condition cannot be imposed in order to remedy a pre-existing problem or issue not created by the proposed development.” Indeed, the judge states, a planning authority could not lawfully impose such a condition. And in this particular case, Lord Justice Lindblom argues that “whilst the policies and guidance cited by Mr Wolfe contain general references to the desirability of development alleviating existing flooding on adjacent land, they do not make this an obligatory ingredient of a sustainable drainage system provided for a particular proposal.”

Paragraph 31 of the judgement states: “The scheme envisaged under condition 15 is one of practical measures for the drainage of the site, consistent with the proposals in the flood risk assessment, not theoretical measures that will – or may – never be put into effect. This does not mean that the developer may not choose to consider the potential for improving the drainage of neighbouring land and for reducing the existing risk of flooding to adjacent properties – only that condition 15 does not oblige him to do so in the surface water drainage scheme he submits to the council.”

Lord Justice Lindblom dismisses the appeal. Lord Justice Elias and Lord Justice Clarke agree and the case is dismissed.

January 2017: Derry Hill plans shelved

As 2016 draws to a close, the Menston Action Group says that Barratt Homes has missed the October 2016 deadline for commencing work on the Derry Hill site, which means that planning permission for the development has now lapsed. The Group also highlights a story by Ben Webster, Environment Editor for The Times, who says that local councils are being offered “huge bribes” to build on the green belt: Bradford Council is allegedly being offered £95m to build 11,000 homes. Meanwhile, the Action Group says Chartford Developments is well on the way to completing the construction of 11 homes at Bingley Road with a revised drainage scheme which the Group hopes will reduce the risk of flooding. [7]

June 2017: Another legal battle?

The Menston Action Group says that Bellway Homes is holding a public consultation on proposals to build 135 homes on the Bingley Road site. Local residents are invited to voice their concerns.

Ongoing issues: Groundwater flooding and sustainable drainage

As well as fighting the above legal battles, the Menston Action Group submitted a statement to Bradford Council in February 2015 in response to its Core Strategy plans, which had allocated the Derry Hill and Bingley Road sites in the village for housing development. The statement says that an independent review of flooding problems in the village highlighted specific problems of groundwater flooding which are unique to Menston, an important factor being the prevalence of springs and responsive groundwater from the Millstone Grit aquifer underlying the hillside on which Menston sits. This hillside is drained by a number of small streams, some of which are seasonal, with flows only occurring in wet weather and/or when groundwater levels are unusually high, and the statement went on to say that prolonged rainfall events cause significant flooding in the local area. [8]

Other parts of West Yorkshire are also susceptible to groundwater flooding. Calderdale Metropolitan Borough Council published a Local Flood Risk Management Strategy in June 2016, which states that the risk of groundwater flooding is high in parts of Brighouse and in the east of Elland. Whilst the strategy document says that the risk of groundwater flooding across Calderdale on the whole is minimal, it also says there could be localised problems in other areas. It also states: “Development within areas susceptible to groundwater flooding will generally not be suited to SuDS and proposals for infiltration drainage but this is dependent on a detailed site investigation and risk assessment.” [9]

A flood risk assessment was submitted to Bradford Council in the Derry Hill case, which, according to the Court of Appeal ruling, acknowledges that “it should be a fundamental objective of the drainage design not to worsen the existing situation and to bring about a reduction in flood risk if possible.” But, as mentioned above, the Court of Appeal ruled that, while planning policies and guidance “contain general references to the desirability of development alleviating existing flooding on adjacent land, they do not make this an obligatory ingredient of a sustainable drainage system provided for a particular proposal.”

Following the EFRA Committee’s findings that too many SuDS schemes were failing to deliver maximum benefits to the environment, it is interesting to compare the Court of Appeal’s ruling in the Derry Hill case with the Committee’s recommendations. Would a judge arrive at a different ruling if sustainable drainage schemes were obliged to deliver the maximum benefits as recommended by the EFRA Committee’s report, and if future planning policy on SuDS were to incorporate the technical standards as also recommended, including a detailed set of “sustainable drainage principles” for the guidance of local planning authorities with the statutory ability of enforcement?

Campaigners in Menston say that Bradford Council consistently ignores their concerns and the weight of evidence regarding flooding issues, with the suggestion that the prospect of huge funds from the Government is swaying the Council’s decisions. Changes to planning policy may therefore have a limited impact on decision making. In any case, there is little immediate prospect that such changes will be forthcoming: with the UK currently facing a period of political turmoil, rewriting planning policy on SuDS is unlikely to be high on a government agenda. And with all parties promising to build a million or more homes over the next few years, local councils will be under pressure to allocate land for housing developments despite the undesirability or appropriateness of the location, and despite a potential increase to flood risk. It is therefore left to local residents and campaigners to try to ensure that existing regulations are not flouted and scientific evidence is not ignored in this process.

Notes

[1] See our previous article, “Inquiry into SuDS finds ‘sub-standard planning policies’ are leaving communities unnecessarily exposed to flood risk”.

[2] The sequence of events has been compiled from a number of sources. For the background, see ‘Menston Action Group granted second Judicial Review’, Schofield Sweeney, July 6th 2015, at http://www.schofieldsweeney.co.uk/news-events/news/menston-action-group-given-permission-in-second-judicial-review/. See also ‘Campaigners get appeal judge to reinstate ground of challenge in housing battle’, Local Government Lawyer, April 24th 2015, at http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=22739:campaigners-get-appeal-judge-to-reinstate-ground-of-challenge-in-housing-battle&catid=1:latest-stories. In addition, the Menston Action Group has a website with a chronology of events and related material at https://menstonactiongroup.wordpress.com/.

[3] Ibid (‘Menston Action Group granted second Judicial Review’, Schofield Sweeney, July 6th 2015). The outcome of this particular JR is unclear, but subsequent events suggest Chartford Developments submitted a revised plan for drainage which met with approval from local residents and the case was dropped.

[4] ‘Success for Menston Action Group in the Court of Appeal’, Bradford Telegraph and Argus, November 18th 2015, at http://www.thetelegraphandargus.co.uk/news/14039977.Success_for_Menston_Action_Group_in_the_Court_of_Appeal/.

[5] Ibid (Note 4). See also ‘Menston Action Group win at Court of Appeal’, Schofield Sweeney, November 16th 2015, at http://www.schofieldsweeney.co.uk/news-events/news/menston-action-group-win-at-court-of-appeal/. The latter item is somewhat confusing, however, as it fails to mention the High Court decision to dismiss the claim in July. This second appeal was against that High Court decision, not, as the item suggests, the Administrative Court decision in January.

[6] ‘Court of Appeal Judgment – Menston Action Group v City of Bradford Metropolitan District Council’, Case No: C1/2015/2774, Royal Courts of Justice, Strand, London, WC2A 2LL, 28 July 2016. Available as a PDF from Kings Chambers at http://www.kingschambers.com/assets/files/Menston%20Action%20Group%20v%20City%20of%20Bradford%20MDC%20judgment%2028%20July%202016.pdf. Note that legal documents usually spell ‘judgement’ as ‘judgment’. For consistency, the former spelling is used in this article.

[7] For these accounts, and news of the latest developments, see the Menston Action Group website at https://menstonactiongroup.wordpress.com/.

[8] Bradford Core Strategy Examination, ‘Statement relating to Flooding Problems in Menston’, February 2015. Available as a PDF from https://www.bradford.gov.uk/Documents/planningStrategy/7%20Examination%5C05%20Documents%20submitted%20by%20other%20parties%20-%20further%20statements%5C/PS%20D028a%20-%20Further%20statement%20matter%207D%20(EN7)%20from%20Menston%20Action%20Group%20376.pdf.

[9] Calderdale Metropolitan Borough Council, Local Flood Risk Management Strategy, June 2016. Available as a PDF from https://www.calderdale.gov.uk/environment/flooding/Calderdale-Flood-Strategy-June-2016.pdf.

Acknowledgement

Photograph: Groundwater flooding in Menston, West Yorkshire, one of a set of photographs taken by local residents and submitted to Bradford Council by the Menston Action Group. Local residents have submitted a body of evidence to the Council to support claims that the development of sites allocated for housing in the village will increase the risk of flooding, but the Menston Action Group says that the Council consistently ignores their concerns. See Note 8 and also the Menston Action Group website at https://menstonactiongroup.wordpress.com/.

The Housing and Planning Act 2016 – A Review

“The Act will contribute to transforming generation rent into generation buy,” says Housing Minister Brandon Lewis

But critics warn that a diktat on starter homes will not solve the housing crisis

August 17th 2016

The Housing and Planning Bill received Royal Assent on 13th May, the final day of the last parliamentary session, following a lengthy battle of parliamentary ‘ping pong’ between the House of Lords and the House of Commons. The Act only applies to England and includes sections on new homes, rogue landlords, the recovery of abandoned premises, social housing, planning, compulsory purchase, and public authority land. [1]

Despite pressure from the House of Lords concerning the need to incorporate energy efficiency and sustainable drainage into the Act, the Act merely commits the Secretary of State to carrying out a review “of planning legislation, government planning policy and local planning policies concerning sustainable drainage in relation to the development of land” (in paragraph 165) and a review “of any minimum energy performance requirements approved by the Secretary of State under building regulations in relation to dwellings” (in paragraph 171).

In a press release, the Government highlighted three features of the new legislation. Firstly, the Act will “help more people own their own home” by extending the ‘Right to Buy’ to housing association tenants and by placing a statutory duty on local planning authorities to promote the development of starter homes. Secondly, the Act will “get the nation building homes faster” by unlocking brownfield land, supporting custom-build and self-build homes, reforming the compulsory purchase system, speeding up neighbourhood planning, and ensuring that all local planning authorities have a local plan.

Controversy

The third feature of the Act has caused much of the controversy in debates about the Bill. This is the package of measures that, according to the Government, “will ensure the way housing is managed is fair and fit for the future.” The measures include the requirement for social tenants on higher incomes to pay higher rents (the so-called ‘Pay to Stay’ requirement), placing a duty on local councils to consider selling their “higher value housing assets” as they become vacant, and reducing the regulatory controls on private registered providers of housing. The management package also includes measures to tackle rogue landlords and measures to enable local authorities to access data on the private rented sector.

The End of Localism?

Further controversy has focused on the centralising of power under the Act. When the Bill received its second reading in the House of Lords in January, Labour peer Baroness Andrews highlighted the fact that the Bill contained 34 new powers for the Secretary of State whilst Lord Kerslake, chair of the Peabody Housing Association, said that the Secretary of State will have considerable powers to dictate the number of starter homes that local authorities will build, even down to individual schemes. Labour peer Lord McKenzie cited a number of measures which showed that the Government was moving “inexorably away from a planning system anchored in the democratic process of the local community,” whilst Lord Kerslake said the measures amounted to a complete denial of localism. [2]

Affordable Housing and the Right to Buy

There has been an equal amount of controversy concerning the Government’s treatment of affordable housing. Peers expressed concerns in January that starter homes were included in the definition of affordability, pointing out that starter homes were still unaffordable to many people, and that the initiative would lead to a reduction in other forms of affordable housing. Peers also pointed out that the first tranche of buyers would be free to sell their assets after five years at market value. Lady Andrews said: “We will be minting a new generation of property speculators.” Lord Kerslake said the bill promoted home ownership at the expense of social rented housing. Taking into account other measures in the Bill, he said the “only reasonable conclusion is that social housing is being written out of the script.” On the Right to Buy, he pointed out that councils would be required to sell off their “higher value” properties as they become vacant to fund the cost of Right to Buy discounts. Speaking on the same topic, Baroness Blackstone said, “It is, in fact, an unscrupulous assets grab.”

The Local Government Association

The Local Government Association (the body that represents local authorities) expressed similar concerns. It published a briefing paper in March, saying it would like to see the Bill amended “to enable local planning authorities to deliver the number, type and quality of starter homes based on their local assessments of need and viability on a site by site basis, alongside other affordable housing options.” It also sought amendments “to give councils maximum freedom to manage their own housing stock and to locally retain capital receipts for reinvestment in new and existing housing, as a minimum retaining sufficient receipts to replace every home sold.”

Parliamentary Ping Pong

By the beginning of May, the Government was embroiled in what BBC News called “a race against time” in its attempts to enshrine the Bill into law before parliament broke up for the summer. The Government had made a number of concessions after suffering 18 defeats in the House of Lords, but the Bill was now bouncing between the Lords and the Commons. The latest Lords amendments concerned the ‘Pay to Stay’ and ‘Right to Buy’ measures. Housing Minister Brandon Lewis had warned that some of the these amendments were budgetary measures, which meant that the House of Commons would have the final say. However, the Lords persisted, voting to soften the impact of the ‘Pay to Stay’ requirement, and seeking guarantees that high value properties sold off by councils would be replaced by similar homes in the same area. Over to the Commons on Tuesday, 3rd May, and MPs vote to reject 13 Lords amendments. Back to the Lords on Wednesday, 4th May, and the amendments are reinstated. In the following week, the Bill bounces between the Commons on the Monday, Lords on Tuesday, Commons on Wednesday, and Lords also on the Wednesday. The final Lords amendment sought a guarantee of funding from the Government to replace affordable homes. The Government said this would reduce the amount of funding for the Right to Buy discount. The Lords conceded and the Bill was given Royal Assent on Thursday 12th May.

Concessions

Following the final vote, the Local Government Association published another briefing, detailing what it and the Lords had sought to achieve, and what concessions had been made. The retention of capital receipts from the sales of council homes to fund the provision of a replacement property had not been accepted, the only concessions on this point being, firstly, a commitment from the Government that the change in wording from “high value” to “higher value” council property would not be used to raise additional funds from local government; and, secondly, that a levy on “higher value” council property, instead of the sales revenue, would be passed on to the Government. On allowing local councils discretion on the promotion of starter homes, the Government remained firm that this would be a statutory duty, the only concession here being a longer period of time before the property can be sold.

With regard to the sale of council property, the Act now incorporates the requirement that properties sold will be replaced on a one-for-one basis, whilst in London the requirement rises to a two-for-one basis, though in either case there is no guaranteed funding for the replacement. On the ‘Pay to Stay’ requirement, the Government rejected attempts to raise the minimum income threshold, so the threshold stays at the proposed level, meaning people with a household income of £31,000 or more (£40,000 in London) will be expected to pay higher rents. There were some concession here, regarding how the thresholds will rise over time and how the rents will increase; the Government also conceded that an exemption could be made if the costs of administering the scheme outweigh the benefits. Attempts to thwart the Government’s goal of ending lifetime tenancies were defeated, with limited concessions for families with children and the disabled concerning the maximum period of a tenancy. [3]

Delays in Implementation

Given the post-referendum confusion and ministerial reshuffle, the timetable for implementing many of the provisions in the Act is unclear. Speaking at a housing conference in July, officers from the Department of Communities and Local Government (DCLG) indicated that delays are likely in implementing the regulations, determinations and guidance on a number of measures included in the new Act, principally the sale of “higher value” properties, the Right to Buy levy, the Pay to Stay provisions, and the phasing out of lifetime tenancies. Reporting on the conference for 24 Housing, Bill Tanner says that DCLG officers were unable to give a firm date when local authorities could expect to see any guidelines, but suggested that regulations and determinations on the definition of “higher value” property and the Right to Buy levy were unlikely to be decided before September.

Meanwhile, April 2017 has been proposed as the implementation date for the Pay to Stay regulations. However, DCLG officers have been discussing the timetable with the new ministerial team and, according to Bill Tanner, have asked local authorities for evidence of difficulties in implementation by the proposed deadline, “together with evidence of implementation costs and forecasts of additional rental income expected as a result of the agreed income thresholds and tapers.”

Precisely how the Pay to Stay requirement will be implemented remains a mystery, but some of the practical difficulties, as well as the potential impact, have been assessed by Liz Davies and Justine Compton, two barristers specialising in housing law. In an article written for the Legal Action Group, they analyse the social housing provisions in the Act and assess the likely impact, focusing on the depletion of affordable housing stock and the ending of lifetime tenancies. On the Pay to Stay requirement, they say that regulations made under the Act “may ‘require the rent’ to be raised to the whole, or part of, local market rents. Powers may be given to local housing authorities to require tenants to disclose details of their income and to ask HMRC for the same information. If a tenant refuses, and the information cannot be obtained from HMRC, the local housing authority might be required to charge the maximum rent. A tenant who refuses to pay will accrue rent arrears and face possession proceedings. It remains to be seen how regulations can have the effect of, essentially, inserting a new clause into existing tenancy agreements, requiring tenants to disclose their finances.”

The End of Social Housing?

Whilst Liz Davies and Justine Compton describe the Act as “a devastating blow to social housing,” Lord Bob Kerslake, chair of the Peabody Housing Association and also president of the Local Government Association, goes further. In an article written for The Guardian, shortly before the Parliamentary ping pong reached its conclusion, he says: “Over the course of this bill, I have reluctantly come to the conclusion that for the leading figures in this Government, publicly provided, social rented housing is now seen as toxic. This is something that I deeply regret. In time, I believe the Government will come to regret this also. It is simply not possible to deliver the new housing the country needs without building more houses of all types and tenures, including social housing.”

Also writing for the The Guardian, Harry Blain describes the Act as “a direct attack on local government.” The Secretary of State for housing will have 32 new powers under the Act, he says. In particular, chapter four of the Act gives the Housing Secretary “powers to prohibit local authorities from appointing officers to the boards of housing associations, and to curtail council voting rights on those boards. The Housing Secretary is also able to change the meaning of the new affordable home, to define the higher value threshold at which councils must sell their homes, and to decide how much extra rent will be paid by so-called high-income council tenants.”

As for the impact on local authorities: “Most councils expect the Act to result in increased homelessness, longer waiting lists for homes and an increase in spending on housing benefit… Councils are footing the bill for the discounts being given to housing association tenants wanting to buy their homes, and the Local Government Association estimates that forcing councils to sell off homes combined with social rent reductions of 1% a year for the next four years will take £2.2bn from council housing budgets by 2020. The LGA argues that this will make it all but impossible to build replacements for homes sold off.”

In the press release delivered after the Bill received Royal Assent, Housing Minister Brandon Lewis said: “The Act will contribute to transforming generation rent into generation buy.” With homelessness on the increase, there are many in local government and elsewhere who will question the Government’s priorities.

Notes

[1] The Housing and Planning Act 2016 is available as a PDF download from the UK Parliament website.
[2] For a more detailed summary of this House of Lords debate, see the article by Laura Edgar in The Planner, 28/01/2016. See also our previous articles on the Housing and Planning Bill by using the search facility on this website.
[3] For a more detailed analysis of the amendments and their final outcome, see the article by Sophie Barnes in Inside Housing, 19/05/2016.

Photograph

Photograph: Affordable housing at Lower Slackbuie, Inshes, Highlands © Copyright E Sandland and licensed for reuse under this Creative Commons Licence. The Housing and Planning Act 2016 does not affect people in Scotland, Wales and Northern Ireland. In England, however, affordable housing faces an uncertain future. Bob Kerslake, president of the Local Government Association, says there are leading figures in the Government who see social housing as “toxic.”