Environmental Law Quarterly Update - Q3 2023

This quarterly environmental law update provides a summary of news stories in the period July 2023 – September 2023.
 

JULY

Potentially increased fines for littering and fly-tipping

The UK government has announced an increase in fines for littering, graffiti and fly-tipping, aiming to curb anti-social behaviour and improve community spaces. As part of the planned crackdown, the maximum fines for fly-tipping will increase from £400 to £1,000, while fines for littering or graffiti will increase from £150 to £500. Additionally, fines for breaching the household waste duty of care will rise from £400 to £600. Local councils will be given the freedom to set precise fines within the specified limits.

The move is in line with the Prime Minister's Anti-Social Behaviour Action Plan and part of the government's wider attempts to tackle anti-social behaviour and enhance community well-being. It is intended to deter individuals from harming public spaces and the environment by ensuring stricter consequences for offenders. The government has also launched initiatives such as the Million Hours Fund to support youth clubs in anti-social behaviour hotspots, and funding for councils to remove discarded chewing gum from streets.

The government says it is considering ringfencing proceeds from these fines to fund local authorities' clean-up and enforcement activities, but points to its guidance which makes clear that in no circumstances should enforcement activity be considered a means to raise revenue. The enforcement guidance is part of the Code of Practice on Litter and Refuse, issued under section 89(7) of the Environmental Protection Act 1990.

Successful prosecution of Scunthorpe waste company and director

SBR Group Developments Limited and its director, Matthew Berry, faced fines and costs totalling £47,970 following a case heard at Grimsby Crown Court.

The Scunthorpe-based company was charged with operating a regulated facility except under and to the extent authorised by an Environmental Permit, contrary to regulations 12(1)(a) and 38(1)(a) Environmental Permitting (England and Wales) Regulations 2016. The company pleaded guilty and was fined £25,640, with additional costs of £17,000. Berry was fined £3,330 and ordered to pay £2,000 in costs for the same charge after also pleading guilty.

The Court heard that Berry had purchased a site in Winterton Road in late 2017/early 2018 from Thompsons Waste Management Limited, a company previously prosecuted for excess waste storage. After contacting the Environment Agency in August 2018 to discuss clearing the site, Berry was informed that he needed an environmental permit or a registered exemption to conduct waste activities there.

Site visits in 2019 revealed ongoing waste presence and, in June 2021, officers found large piles of shredded waste. The site was eventually cleared in November 2021. It was estimated that the operator had avoided £19,189.50 in permitting charges, and the site was assessed to have stored 726.31 tonnes of waste.

The Environment Agency welcomed the sentence as a deterrent for companies breaching environmental legislation. It emphasised that failing to comply with environmental permit requirements is a serious offence that can harm the environment and legitimate businesses.

Shark Fins Act introduced

The UK has taken a significant step in global shark conservation by passing the Shark Fins Act 2023, which bans the import and export of detached shark fins, including products such as tinned shark fin soup.

Shark finning, the practice of removing a shark's fins at sea and discarding the body, has been banned in the UK since 2003. The new Act builds upon existing protections, aiming to curb the demand for shark fin products, which has contributed to overfishing and the endangerment of various shark species. Out of more than 500 shark species, 143 are listed as 'Under Threat' by the International Union for Conservation of Nature.

According to the government, the new Act aligns with the UK's commitment to animal welfare and conservation, following its Action Plan for Animal Welfare pledge. Sharks are vital to marine ecosystems, serving as indicators of ocean health and helping maintain fish populations lower in the food chain. The ban represents a critical measure to protect these creatures and promote sustainable management of shark populations globally.

The Act's implementation reflects the UK's dedication to championing the conservation of sharks and marks a significant move in the fight against shark finning and overfishing.

Waste tyre offences lead to suspended sentences

In a joint operation, the Environment Agency, Calderdale Council, Bradford Council and West Yorkshire Fire and Rescue discovered two illegal waste sites in Calderdale and Bradford.

The operation led to the sentencing of Shakil Ahmed, owner of the Calderdale site, and Jamie Craggs and Levi Depass, directors of the company involved. Ahmed was sentenced to ten months’ imprisonment suspended for 18 months, along with 250 hours of unpaid work. Ahmed was also ordered to pay £2,500 in costs. Craggs and Depass received 12-month suspended sentences, 250 hours of unpaid work and an order to pay £2,500 in costs. The Tyre Waste Team Limited was fined £10,000 and ordered to pay costs of £2,500.

The case involved illegal waste operations storing and treating tyres at two sites in Bradford: Fairlea Mills in Calderdale and Ashley Lane in Shipley. Both sites posed significant fire risks, endangering human health and potentially causing air and water pollution. The Environment Agency, along with partner agencies, ensured the removal of the tyres thereby eliminating the fire risks. The agencies worked together to target sites where fire risks could impact the environment and public safety. According to a statement from the agencies, the joint effort demonstrated the commitment to cracking down on waste crime and illegal waste sites.

AUGUST

Suspended sentence for illegal waste business

More prosecutions for illegal waste operations concluded in August when Jack Selby, the owner of a skip-hire company, received a suspended prison sentence for operating an unlicensed waste treatment operation at Erith along the banks of the River Thames. This was contrary to Regulations 12(1) and 38(1) of the Environmental Permitting (England and Wales) Regulations 2016.

Investigators discovered Selby was handling waste illegally and that his site posed several risks – including air pollution, fire and potential flooding. The defendant’s company, Selbys Ltd., accepted construction, demolition and household waste in rented premises for 11 months over 2021 and 2022. The waste piles included wood, plastic and trommel fines (crushed waste). The waste mountains at Maypole Crescent, on the Darent Industrial Estate in north Kent, caused spillage onto the adjoining Thames flood defence, potentially compromising its integrity.

The Environment Agency had to gain a restriction order from the court to close the site due to environmental concerns about dust, fire risk and flood defence damage. The waste site was also discovered to have been burning waste, further exacerbating the hazards.

Following a trial at Woolwich Crown Court, Selby was found guilty of operating the illegal waste facility and was sentenced to eight months in prison (suspended for 18 months), 60 hours of unpaid work and a victim surcharge of £156. The Environment Agency said the case serves as a reminder to the waste industry to operate within the law and underscores the serious consequences of illegal waste management.

Unlimited fines for polluters – a new consultation

On 15 August 2023, the Environment Agency initiated an eight-week consultation on changes to variable monetary penalties for specific environmental offences. These changes involve removing the current £250,000 cap on civil penalties and broadening the scope to cover a wider range of environmental offences under the Environmental Permitting (England and Wales) Regulations 2016. The new enforcement powers are designed to offer quicker and more straightforward penalties, facilitating a swifter method of enforcement compared to lengthy criminal prosecutions, though the most severe cases will still be handled through the criminal justice process.

The proposed alterations are intended to strengthen enforcement and ensure compliance across sectors – such as energy, water, waste and incineration. Regulators would have enhanced tools to promote adherence to environmental regulations. Penalties would be calculated based on the degree of environmental harm, the operator's size and responsibility, among other factors.

All fines and penalties imposed on water companies in the future will contribute to a newly established Water Restoration Fund which will be reinvested into the environment by supporting local groups and community-led initiatives.

The Environment Agency’s Executive Director, John Leyland, highlighted that these powers act as an additional deterrent, reinforcing compliance and providing stronger environmental protection for communities and nature. Meanwhile, Rebecca Pow, Minister for Environmental Quality and Resilience, stressed the importance of ensuring polluters pay for their actions.

The consultation builds on government efforts to bolster investment, enforce regulations, and toughen penalties, ensuring proportionate punishment for operators violating permits and harming natural habitats.

£800,000 fine for utilities company over illegal water abstraction

United Utilities Water Limited has been fined £800,000 by Warrington Magistrates’ Court following a prosecution by the Environment Agency. On 15 August 2023 the company admitted to illegally abstracting 22 billion litres of water from boreholes in Lancashire, an amount sufficient to fill 8,800 Olympic swimming pools. This over-abstraction occurred during a period of exceptionally dry weather in 2018, causing stress on the environment and a significant decline in the water level of the Fylde Aquifer, an essential underground water storage area that supports healthy river flows and serves as a public water source. The aquifer will take years to recover from this depletion.

Water resource licences are issued by the Environment Agency, and various types of licences are available depending on the quantity of water involved and the usage, among other factors. The Environment Agency's investigation revealed that United Utilities had exceeded the limits set by five of their abstraction licences in the Franklaw and Broughton Borehole Complex.

United Utilities pleaded guilty to the charge and made a £3 million voluntary contribution to local environmental improvement projects.

Minister Rebecca Pow drew attention to the government’s view that companies harming the environment should be held accountable by the courts, and said that the incident highlights the need for stricter enforcement, tighter regulation and increased investment in the water sector, as outlined in the government's Plan for Water. This plan aims to enhance the country's water system and safeguard water resources for future generations.

SEPTEMBER

Introduction of further restrictions on polluting single-use plastics

As of 1 October, the UK government has implemented strict new measures to combat plastic pollution. This involves prohibiting businesses, including retailers, takeaways, food vendors and others in the hospitality industry from selling single-use plastic cutlery, balloon sticks and polystyrene cups and food containers.

These regulations also restrict the supply of single-use plastic plates, trays and bowls. The move follows extensive research indicating that England uses 2.7 billion pieces of plastic cutlery and 721 million single-use plates annually, with only 10% of items being recycled.

The ban aims to address the severe environmental damage caused by plastic pollution, which takes centuries to break down and contributes significantly to ocean, river and land pollution, as well as greenhouse gas emissions.

According a government press release, the new measures align with the government's commitment to eliminate avoidable plastic waste by 2042 and are overwhelmingly supported by the public, with 95% of respondents favouring the prohibitions. The ban complements existing initiatives, including the ban on microbeads in personal care products, restrictions on plastic straws, stirrers and cotton buds, the Plastic Packaging Tax and the single-use carrier bag charge. However, it excludes single-use plastic plates, trays and bowls used as packaging in pre-packaged food items.

The government plans to additionally introduce a deposit return scheme for drinks containers, further enhancing recycling efforts and reducing plastic waste.

Private prosecution of water company allowed to proceed

On 29 September 2023, a district judge at Southampton Magistrates’ Court gave permission for a private prosecution to proceed against Southern Water. The prosecution is being brought by Fish Legal, previously the Anglers’ Conservation Association, a specialist non-profit organisation of lawyers.

Under s.6(1) of the Prosecution of Offences Act 1985, any person in England and Wales has the right to privately prosecute another person – whether an individual or company. A private prosecution begins with the ‘laying of an information’. This is reviewed by a magistrates’ court and a decision made – usually on the papers – as to whether to allow the case to proceed and thereby issue a summons or warrant. A defendant may challenge this decision by way of a claim for judicial review at the High Court. Exceptionally, in cases where issues of public policy, national security or relations with other countries may have an impact on the decision to prosecute, a private prosecutor may be required to obtain the consent of the Director of Public Prosecutions before they can proceed (this did not apply here).

Fish Legal alleges that Southern Water is criminally responsible for a diesel pollution incident which took place in the River Test in June 2021. Although the incident was not caused by the water operator, Fish Legal alleges that it is nonetheless liable as the pollution travelled through its pipes.

The Environment Agency (EA) was made aware of the incident at the time and began an investigation, which remains ongoing. The EA has intervened in the private prosecution case, arguing that criminal proceedings should be adjourned until its investigation had been completed. Southern Water supported this position in court.

However, District Judge Peter Greenfield reportedly said that he could see no reason why the case should not proceed.

Fish Legal says it brought the case because pollution “has been entering the Test from Nursling Industrial Estate for decades without any effective enforcement action being taken by the Environment Agency.”

This is another example of individuals and organisations seeking to hold businesses to account for allegations of environmental failings through more innovative means where they feel state enforcement is lacking or there are legislative lacunas. Other such recent examples include ClientEarth’s OECD complaint regarding BP’s advertising, or the World Uyghur Congress’s judicial review against HMRC and others regarding their refusal to investigate or block cotton imports from China’s Xinjiang Uyghur Autonomous Region.

Southern Water will next appear in court on 27 February 2024.

Further Information

For further information on the issues raised in this blog post, please contact Sophie Wood or Úna Campbell.

About the Authors

Sophie Wood is a Legal DIrector in the Criminal Litigation team with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations. Sophie has acted for individuals and companies involved in investigations brought by the Environment Agency, Health and Safety Executive and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.

Úna Campbell is a legal apprentice in the Criminal Litigation team at Kingsley Napley. Úna was the inaugural winner of The Legal Apprentice in 2019, a competition run by Kingsley Napley in association with The Times in which 902 teams from 308 schools and colleges across the UK competed against each other through a series of heats testing pupils’ drafting, negotiation and interpersonal skills.