Covering the latest conservation law updates including legislation and case law.
This article is taken from November's public matters newsletter. Click here to view more articles from this issue.
We have seen from the Court of Appeal’s decision in the Plan B Earth v Secretary of State for Transport  EWCA Civ 214 (‘the Heathrow case’) earlier this year the importance of the UK’s legal commitments towards climate change and the significance of the obligations set out under the Climate Change Act 2008 in order to achieve Net Zero by 2050. But how will Covid-19 impact the UK’s ability to meet Net Zero commitments?
We have seen a huge shift in how the pandemic has altered the way in which we live (working from home, reduced use of vehicles and public transport) and this has resulted in positive environmental changes, for example a reduction in the levels of air pollution. The public opinion on climate change has also shifted since the start of the pandemic and we have seen more focus on a ‘green recovery’ as we emerge from lockdown restrictions. There has been a real push for the government to seize this opportunity to tackle the climate crisis and we have already seen recommendations and plans being put forward around the introduction to systems like solar farms, district heating, synthetic fuels, hydrogen powered/electric vehicles and sensor operated lights.
The Government is expected to announce shortly whether it is going to bring forward the ban on sale of new petrol, diesel and hybrid cars and vans to 2030. If a report commissioned by Greenpeace is correct, bringing forward the date from which sales of new petrol, diesel and hybrid cars and vans will be banned could generate 32,000 new jobs and provide a £4.2 billion boost to the economy.
The question is, will the Government seize the opportunity to turn this pandemic into a defining moment in the fight against the climate crisis?
On 7th September 2020 Lord Faulks QC issued a call for evidence for analysis by the Independent Review of Administrative Law (IRAL) in consideration for the reform to the judicial review (‘JR’) process. The review has raised concerns amongst environmental organisations as they question how the planned reform of the JR process will impact their ability to challenge the decisions of public bodies if it is considered those decisions are illegal, unfair, in breach of a legitimate expectations and so on.
The purpose of the review is to consider one key question: ‘Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?’. As it stands, environmental NGO’s are able to rely on JR as a means of challenging the decision-making process of the government and public bodies. We have seen organisations such as ClientEarth successfully use the JR process to contest decisions made on policies such as air quality. The IRAL will submit recommendations to the Lord Chancellor and Michael Gove by the end of 2020.
The Mayor of London has withdrawn his claim for judicial review in relation to plans for a new incinerator to be built in Belvedere in South East London. This is despite the High Court granting Mr Khan’s judicial review application, which was expected to commence in October.
Following a Government Inquiry in 2019, the Secretary of State for Business granted approval for the incinerator to be built that would be capable of dealing with 805,000 tonnes of waste a year and producing 96 megawatts of electricity. However, the Mayor of London applied for a judicial review on the basis of the project’s environmental impact on Rainham town centre and its approval process.
The Mayor has now confirmed that he is dropping the challenge as a result of the potential significant costs that would be incurred if the case were to proceed to a full hearing. The challenge had been supported by the two local MPs, who have raised the prospect of using local fundraising and financial assistance from national environmental groups to continue with the judicial review.
Whether the MPs are successful or not, it seems clear that the financial impact on local government, as a result of the Coronavirus pandemic, has now extended into the environmental arena as well.
The Chancellor is considering introducing a carbon tax with the aim of increasing government revenue while encouraging investment in decarbonisation. Currently, the European Union’s emissions trading scheme (ETS) applies, where companies can purchase or sell emission allowances; however, this is due to end once the transition period finishes.
The government’s options include crafting its own scheme, introducing taxes or creating a hybrid system. The Treasury’s reported preference is for a carbon tax scheme, which could help repay the current annual deficit that is projected to reach £400 billion this year. The Department for Business, Energy and Industrial Strategy, however, is in favour of emissions trading and is pushing back against the Treasury’s proposals. It is also currently preparing its own UK ETS for when the transition ends, having published proposals on 1st June. The Prime Minister is expected to decide on which proposal goes ahead by December 12th 2020 when he will co-host a UN climate action meeting.
Whether the Treasury wins the fight with the BEIS might, however, ultimately depend on the current EU negotiations: any carbon tax proposal would have to be agreed as part of the UK’s trade deal with the EU. Although the government is negotiating for a UK ETS to be pegged with the EU ETS, the UK can still create the former if negotiations fail on this point or the UK does not agree a trade deal with the EU.
Businesses may have to wait until the end of the year to find out what the UK’s new carbon regime will be.
Whether there will be a weakening of the regime or not, it seems clear that the government intends to facilitate and simplify the EIA process.
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The government has outlined an ambitious target for improving the quality of water, and based on its own progress report and the Environment Agency’s results, it faces an increasingly uphill challenge to meet these goals.
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This instrument came into force on 1 October 2020 and it transfers six directives of the EU’s 2020 Circular Economy Package, including the waste framework directive, the landfill directive and the packaging directive, into UK law. It will ensure that the UK embraces a more circular economy as resources are used for as long as possible and waste is minimised. 2. Climate and Ecology Bill 2019-21 This Bill had its first reading in the House of Commons on 2 September 2020 with a second reading due on 12 March 2021. It will impose an obligation on the government to achieve certain climate and ecology objectives and will impose a duty to implement a strategy to achieve those objectives.
The third reading of this bill took place in the House of Commons on 13 October 2020. The Bill provides a legal framework for the UK to operate as an independent coastal state outside of the EU following the Brexit transition period.
There have been some significant proposed amendments to the Environment Bill. The most significant being the proposal to give the Secretary of State powers to issue guidance to the Office for Environmental Protection (OEP) regarding its enforcement policy. The stated reason for this is to protect the OEP’s ability to consistently focus its attention and resources on the most serious cases. However there is real concern that this could erode the independence of the OEP before it even comes into existence.
Another change is the proposal to limit the OEPs powers to bring judicial review proceedings against public bodies to ‘urgent cases’. Whilst in practice it was always likely that the OEP will only bring judicial reviews in the most serious of cases, it is concerning that the government is introducing more curbs to its powers.
In connection with the proposed planning reforms, the government has proposed ‘species conservation strategies’ and ‘protected sites strategies’. The strategies propose a more holistic approach to particular species and protected sites. In theory they are positive because the focus is on the cumulative effect of development rather than the effect on individual cases. However there is a real concern about the resources needed to effectively create, implement and keep up to date the strategies.
The claimant’s application for judicial review of a decision made by the defendant in granting planning permission for a development at the Belvoir Castle in Bath was successful. It was concluded that the defendant (i.e. the Local Authority) had not provided sufficient grounds for granting planning permission within the world heritage site and therefore, the defendant’s decision would be quashed.
Claims brought on behalf of Green Lanes Environmental Action Movement (GLEAM), who campaign to protect green lanes and the rights of walkers and others to use such lanes without danger, difficulty or inconvenience, were dismissed by the court. GLEAM challenged the decision made by the Lake District National Park Authority to not impose a traffic regulation order (‘TRO’), which would put a stop to off-road driving in certain areas of the Lake District. GLEAM had brought three grounds of challenge relating to TRO’s, the first of which relates to the Sandford Principle pursuant to s.11A(2) of the National Parks and Access to the Countryside Act which states that “where irreconcilable conflicts exist between conservation and public enjoyment, then conservation interest should take priority”. GLEAM’s claim questioned the lawfulness of the Lake District National Park Authority’s (LDNPA’s) decision not to seek TRO’s. However, the judge dismissed the claim on the basis that he was satisfied with the approach taken and the procedures followed by LDNPA. He then proceeded to dismiss the other two grounds of challenge which also related to the TRO procedure. Following this decision, GLEAM have confirmed that they are considering whether there are grounds for appeal. Dr Mike Bartholomew, chairman of GLEAM said “off-roading in Little Langdale is damaging the natural beauty of this part of the National Park…”
The Court of Appeal refused to grant permission for judicial review to an environmental campaigner allowing them to appeal or apply for judicial review in respect of the decision made earlier this year, which allowed for the implementation of the HS2 rail link project to proceed. It was held that the claim had not been brought promptly following the decision in February 2020. It was also found by the court that in matters of national political significance, of which this case was, the exercise of the secretary of state's functions were not constrained by legislation and a challenge by way of judicial review could be made only on irrationality grounds.
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023:
Announced in September but scrapped on 17 November the investment zone proposals were very short lived. The proposal has now morphed into the proposal for a smaller number of clustered zones earmarked for investment.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship. There are already restrictions on the extent to which personal injury claims can be settled by a settlement agreement. There have also been numerous consultations about the use of non-disclosure agreements and confidentiality clauses, particularly where allegations of sexual harassment and discrimination have been raised. In any event, it is clear that settlement agreements should not be used to prevent an employee from raising a protected disclosure.
On 2 November 2022, the Supreme Court handed down its judgment in the much awaiting case of Hillside Parks Ltd v Snowdonia National Park Authority  UKSC 30. The Court’s judgment suggests that the long established practice of using drop-in applications is in fact much more restricted than previously thought. This judgment therefore has significant implications for both the developers and local planning authorities.
The war on plastic is being taken to a new level, and businesses that don’t consider sourcing recycled packaging materials could face costly implications.
In ‘failure to remove’ claims, the claimant alleges abuse in the family home and asserts that the local authority should have known about the abuse and/or that they should have removed the claimant from the family home and into care earlier.
Earlier in the year a number of fashion retailers, boldly announced the introduction of a charging fee for returning any product purchased via their online store. Yet, despite this commercial, and perhaps somewhat controversial decision, at least one major fashion giant that adopted this approach has recorded ‘historic highs’ in its September profits. Browne Jacobson partner, Cat Driscoll who heads up the firm’s commercial team in Manchester and is also head of its Fashion & Beauty sector discusses whether this change has put the average consumer off and whether the days of free returns are long gone.
Across the UK, homelessness is an urgent crisis, and one that is set to grow amid the rising cost of living. Local authorities are at the forefront of responding to this crisis, but with a lack of properties that are suitable for social housing across the UK, vulnerable individuals and families are often housed in temporary accommodation.
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
The fashion industry has a mountain to climb when it comes to sustainability. More than 8% of greenhouse gas emissions come from the apparel and footwear industries, and approaching three-fifths of all clothing ends up in incinerators or landfill within a year of being made.
Updates include UK Shared Prosperity Fund, contracts, Subsidy Control Bill, data controller liability, Government Covid-19 procurement and Highway Code revisions.
The complex and rather nebulous transitional subsidy control regime set out in the UK-EU Trade and Co-operation Agreement and the UK’s wider international commitments has made it difficult for public authorities and those working with them to proceed with certainty where subsidies are involved.
Investment zones have been introduced by the Conservative party to get the United Kingdom (UK) ‘working, building and growing’. They are to be designated sites which provide time-limited tax incentives, streamlined planning rules and wider support for local growth to encourage investment and accelerate the development of housing and infrastructure that the UK needs to drive economic growth. Processes and requirements that slow down development will be stripped back with the intention of attracting new investment.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.
The Procurement Bill (the Bill) has now been with us for about four months, during which time there have been a huge number of amendments proposed in the House of Lords (circa 320). Lately, there has been less mention of it — unsurprising, really, given everything else going on in politics recently — but here’s a summary of some of the key issues and themes so far.
Browne Jacobson has been named as a supplier on Crown Commercial Service’s (CCS) Public Sector Legal Services Framework on Lot 1a – full-service provision (England and Wales) and Lot 2a – general service provision (England and Wales).
Browne Jacobson has been ranked as a Top Tier law firm in 25 key practice areas in Legal 500 UK 2023, the independent directory of comparative law firm performance. The firm also continues to underpin its status as one of the leading law firms in the East Midlands region with 16 Tier 1 rankings.
Welcome to our September edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
Since the UK left the EU and are now able to move away from the EU data protection regime, the UK government have implemented a national data strategy with the aim of reducing the burden on organisations but maintaining a high data protection standard.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
Devolution is the transfer of powers in areas like transport, housing and skills in England and since the Cities and Local Government Devolution Act 2016 has been a much-discussed topic.
In this article we look at local authority companies and whether they are subject to the Freedom of Information Act 2000. And for those that are, what information are they legally obliged to submit.
The Department for Levelling Up, Housing and Communities (DLUHC) has published a consultation on proposals to require Local Government Pension Scheme (LGPS) administering authorities (AAs) in England and Wales to assess, manage and report on climate change risks.
The concept of Legal Project Management (“LPM”) is increasingly relevant to the delivery of legal services, both in-house functions and private practice law. This is unsurprising, LPM is crucial if lawyers are to add value by controlling budgets, communicate pro-actively on risk mitigation and costs, and manage time by resourcing to deal with pinch points in the project.
The Department for Education (DfE) have announced that the conversion of Donisthorpe Primary School in Leicestershire on 1st September marked the 10,000th academy conversion.
Browne Jacobson’s specialist cleantech lawyers have advised AIM listed Clean Power Hydrogen Group Limited (CPH2) on its licence agreement with Bentec GmbH, a member of the Kenera business of the KCA Deutag Group. Kenera will manufacture CPH2’s unique membrane-free electrolysers from its facility in Bad Bentheim, Germany.
Welcome to our August edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
On 31 August 2022, the Court of Appeal handed down the Judgment in respect of the appeal case of HXA v Surrey County Council and YXA v Wolverhampton City Council .
This month, HM Treasury issued a consultation on Administrative Control Process for Public Sector Exits with draft guidance. They’re proposing to introduce an expanded approvals process for employee exits and special severance payments, and additional reporting requirements. If approved, the proposals will impact public sector bodies and those that do not have a specific right to make exit payments.
The focus on the Levelling Up agenda and the availability of grant funding, means there are numerous important regeneration schemes actively being pursued across the country. With ever-escalating project and building costs, in many cases, applications that were made for grant funding were based on costs contingencies that have already been exceeded.
The Government has recently published its response to the consultation on Subsidies and Schemes of Interest and of Particular Interest under the Subsidy Control Act 2022. In this article, our subsidy control experts discuss some of the key points coming out of the response, and their impact for public authorities.