Environmental Law Quarterly Update – Q4 2023

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

OCTOBER

Public Consultation Carried Out for Ban on Plastic-Containing Wet Wipes

On 14 October 2023, the UK government opened a nationwide consultation on banning wet wipes containing plastic, with the aim of combating plastic pollution and enhancing waterway cleanliness. The proposed ban, which the government says is integral to its Plan for Water, aligns with broader efforts to bolster investment, regulation, and enforcement in the water system.

Wet wipes with plastic components break down into harmful microplastics over time, adversely affecting the environment and human health. Banning such wipes seeks to mitigate this problem, diminishing the influx of microplastics into wastewater treatment plants when improperly disposed of through flushing.

A number of large retailers, including Boots, Tesco, and Aldi, have already ceased the sale of plastic-containing wet wipes, and the proposed ban aims to extend this commitment across the industry. The consultation, launched in collaboration with devolved administrations, responds to public demand for action against plastic pollution in waterways, with 96% of respondents in a 2021 Call for Evidence supporting a ban on plastic-containing wet wipes.

The consultation period, which spanned six weeks until 25 November 2023, invited public input on prohibiting the manufacture, supply, and sale of plastic-containing wet wipes throughout the UK. Environment Secretary Thérèse Coffey emphasised the need to address wet wipes' environmental impact, echoing the government's broader agenda to eliminate avoidable plastic waste by 2042, following successful measures such as the ban on microbeads and the introduction of the Plastic Packaging Tax.

River Action wins landmark court ruling

On 19 October 2023, River Action, an environmental charity, was granted permission by the High Court to pursue a judicial review against the Environment Agency (EA) in relation to its alleged failure to protect the River Wye from agricultural pollution. The legal challenge asserts that the EA, by not effectively enforcing the 2018 Farming Rules for Water, acted unlawfully in allowing excessive manure spread across agricultural land in the Wye river catchment.

River Action contends that the lack of enforcement by the EA contributed to elevated levels of phosphorus in the soil, a major factor in the river's algal blooms. It says these blooms have been identified as a significant cause of the river's ecological collapse, particularly in areas designated as a Special Area of Conservation. A study from Lancaster University cited by the charity revealed that a substantial portion of the phosphorus entering the river annually originates from agriculture, mainly driven by the rapid expansion of the region's intensive poultry industry.

River Action further argues that had the EA fully enforced existing regulations, the environmental crisis could have been mitigated. Its chair, Charles Watson, emphasised that the case would address the EA's decision to follow DEFRA's guidance, which allegedly led to the neglect of critical provisions in the 2018 Farming Rules for Water.

Welsh Water Admits Long-Term Illegal Sewage Discharges

Welsh Water has acknowledged the illegal discharge of untreated sewage at numerous treatment plants for several years, following an analysis of its own data by campaign group Windrush Against Sewage Pollution (WASP). One of the provider’s worst-performing plants is located in Cardigan, West Wales, where untreated sewage has been released into an environmentally protected area near a dolphin habitat for at least a decade.

The company admitted to the BBC that 40 to 50 of its wastewater treatment plants were operating in violation of their permits. The company said it prioritises plant improvements based on customer bills, and since there was reportedly "no measurable environmental impact" from spills in the Cardigan estuary, those were considered a low priority.

Welsh Water’s data was analysed by mathematician Peter Hammond from WASP. His work revealed that Cardigan's treatment plant had been spilling untreated sewage for over 200 days annually from 2019 to 2022. The plant rarely treated the required amount of sewage before spilling, breaching its permit stipulations.

The BBC reported that regulator Natural Resources Wales has been aware of the issues at Cardigan for eight years, and has issued enforcement notices, but no fines have been imposed.

The regulator said it was looking at data from 101 treatment plants run by Welsh Water that have been spilling before they reach their permit capacity, although the company disputed those figures and noted it was not under "formal investigation". Welsh Water also said it plans to begin construction on a new treatment plant in Cardigan in 2025, costing £20 million.

 

NOVEMBER

Brothers jailed for environmental offences

Liam Winters and his brother Mark Winters, former directors of Codicote Quarry Ltd, have been sentenced for the illegal disposal of significant quantities of household and business waste at Codicote Quarry near Stevenage. The Environment Agency prosecuted the brothers for almost three years of unlawful disposal, leading to storage and burial of at least 200,000 cubic meters of banned and potentially harmful materials, far exceeding the permitted amounts.

Codicote Quarry had a permit to treat and store only a limited amount of soil waste, but the brothers exceeded disposed of a wide range of materials, including household, commercial, and industrial waste, electrical items, car parts, furniture, food packaging, wood and metal. The EA had carried out investigations supported by Hertfordshire County Council. This included a number of site visits. The EA suspended the site’s permit in November 2017, and issued notices requiring removal of the waste. However, those notices were not complied with.

The EA prosecuted the two men under the Environmental Permitting (England and Wales) Regulations 2016 and the Environmental Protection Act 1990. Following a sentencing hearing at St Alban’s Crown Court, Liam Winters, who also admitted illegal waste storage offences relating to two other sites, received a 17-month prison term, while Mark Winters was sentenced to 12 months in prison, suspended for two years. Both were also banned from being company directors for eight years.

Earlier in the year, the brothers had admitted four identical charges relating to activities at the site between January 2015 and November 2017.

According to the EA, the illegal disposal at a location which was not designed for landfill purposes, has environmental repercussions, requiring long-term monitoring to minimize the risk of polluting the River Mimram and groundwater sources.

Any award of costs or a confiscation order against the brothers and Codicote Quarry Ltd will be considered at a later date.

Somerset Cheesemaker Fined After Third Pollution Offence

Alvis Brothers Ltd, a Somerset company known for Lye Cross Farm cheeses, has admitted a third instance of causing pollution from its farm near Bristol.

At Bristol Magistrates’ Court, the firm, a supplier to a number of major supermarket chains and exporter to more than 40 countries, admitted guilt in causing the discharge of a poisonous or polluting matter.

The court heard that the company had faced similar charges in 2013 and 2019. This led the district judge to criticise it for failing to self-report pollution incidents, stating that they seemed to hope to avoid repercussions.

According to the EA, the latest incident was discovered its officers in September 2020. After reports of visible pollution in a watercourse downstream of Lye Cross Farm, the officers traced this to a blockage in a pipe carrying wash water from the company’s cheese production facility. The blockage, which consisted of everyday items including a plastic bag containing gloves, had overflowed into the watercourse. The company’s Farm Operations Director, Nick Green, admitted the offence during an interview under caution.

The company later attempted to resolve the matter with an offer of an Environmental Undertaking sum, but this was rejected by the EA and the company was prosecuted. After a hearing, the court ordered the company to pay a fine of £20,000 plus costs and a victim surcharge.

Former Company Director Sentenced for Illegal Waste Dumping

John Stride, a 56-year-old former company director from Epping, has been sentenced at Reading Magistrates’ Court to 120 hours of unpaid community service, and ordered to pay £4,000 in costs and a victim surcharge of £85. The sentencing follows Mr Stride's guilty plea at Slough Magistrates’ Court on 20 October 2023 to a charge of causing his company, Orion Support Services Ltd, to illegally dump approximately 160 tonnes of waste at a closed landfill site in Gerrards Cross, Buckinghamshire.

Vehicles linked to the company were caught dumping 160 tonnes of waste at Veolia UK’s Wapseys Wood landfill site over the bank holiday weekend of 26 to 29 May 2018. The waste dumping was part of a larger illegal dump of over 600 tonnes during that weekend.

After enhancing security, Veolia UK prevented another attempt to dump more waste at the site from Mr Stride's vehicles and others the following weekend. Mr Stride, the sole director of Orion Support Services Ltd, which held an environmental permit to operate a waste site in Canning Town, East London and was dissolved in December 2019, admitted responsibility for the illegal dumping.

The Environment Agency said it used information from Veolia UK, including CCTV footage and vehicle tracking data, during the complex investigation.

Yorkshire Water pays record £1 million civil sanction

Yorkshire Water has made a historic payment of £1 million to charitable organisations following a violation of environmental regulations that resulted in the pollution of a Harrogate watercourse. The Environment Agency investigated the breach of Yorkshire Water's environmental permit, which involved an unauthorised discharge of sewage from the Hookstone Road combined sewer overflow, contaminating Hookstone Beck.

The company voluntarily submitted an Enforcement Undertaking (EU) to the Environment Agency, proposing a charitable donation. The undertaking was accepted, making this the largest ever received by the agency. Yorkshire Water has disbursed £500,000 each to Yorkshire Wildlife Trust and Yorkshire Dales Rivers Trust. Additionally, the company completed a £1.85 million upgrade to the sewer network in the affected area as part of the enforcement terms.

According to the Environment Agency, the violation stemmed from a blocked combined sewer overflow, which, when full due to rainfall or snow melt, is permitted to discharge into the beck. Malfunctioning telemetry equipment failed to alert Yorkshire Water to the overflow, resulting in pollution on 31 August 2016. This in turn led to the death of nearly 1,500 fish and water quality degradation for about 1.5 miles downstream, with subsequent incidents occurring in the following months.

An agency spokesperson explained that enforcement options – including EUs – are always considered on a case-by-case basis. She noted that EUs allow companies to put right what went wrong and contribute to environmental improvements and outcomes.

 

DECEMBER

Unlimited penalties introduced for businesses who pollute environment

As of 11 December 2023, the Environment Agency can impose unlimited financial penalties on companies found to be polluting the environment. The previous £250,000 cap on Variable Monetary Penalties (VMPs) has been eliminated, and the range of offences covered by VMPs penalties has been expanded.

The expanded range of offences subject to VMPs includes breaches of permit conditions for sites discharging into rivers and seas (e.g. sewage treatment works and permitted storm overflows), illegal discharges to water without a permit (e.g. agricultural pollution from slurry stores), illegal waste offences (e.g. from illegal scrapyards or unpermitted waste management facilities), and permit breaches from manufacturing industries and power stations contributing to air pollution.

The removal of the cap and the increased scope of offences covered is part of the UK government’s Plan for Water, which aims to strengthen regulation, increase investment, and enhance enforcement across the water system. The changes also aim to provide the Environment Agency with more effective tools to hold various industries accountable for environmental violations.

Penalties will be proportionate to the size of the company and the nature of the offence, aligning with Sentencing Council guidelines.

The government explains that funds raised from penalties imposed on water companies will contribute to the Water Restoration Fund, supporting projects aimed at improving rivers, lakes, and streams at a local level.

Defra publishes two letters on the environmental performance of water companies

The Department for Environment, Food and Rural Affairs (Defra) has published two letters written by the Secretary of State, Steve Barclay.

One of these letters is directed to the Environment Agency (EA). Barclay states that the performance of operators is below expected standards and that holding them, and their enforcement agencies, to account is one of his top priorities. He notes the expanded legal powers given to the EA in relation to water companies and other sectors which may pollute the environment, highlighting the lifting of the cap on variable monetary penalties (VMPs), and expansion of their scope. Barclay makes clear that the government expects these powers to be used appropriately to deliver tougher penalties.

The second letter is written to the water companies. Here, Barclay requests that operators improve their maintenance programmes to ensure these are not a cause of storm overflow discharges, reminding them that this is a legal requirement and pointing also to the expectations in the government’s Storm Overflows Discharge Reduction Plan. Barclay goes on to ask the companies to continue to find interim solutions to reducing discharges.

Penalty Notices now available for Animal Health and Welfare Offences

The Department for Environment, Food & Rural Affairs has announced the introduction of penalty notices for animal health and welfare offences under new secondary legislation. As of 1 January 2024, penalty notices of up to £5,000 can be issued for various offences, including maintaining animals in poor living conditions, overdue bovine tuberculosis testing, breaching avian influenza housing orders, and operating as animal breeders without a license.

The relevant statutory instrument was laid on 11 December 2023 under the Animals (Penalty Notices) Act 2022, following an eight-week public consultation in the summer of 2023. The government says that more 85% of respondents supported the notices’ implementation as an enforcement tool. The law adds to existing enforcement measures, such as warning letters and statutory notices, aiming to protect animals and ensure compliance with the law by animal keepers. The penalty notices are introduced following a public consultation.

Serious animal welfare offences will still be subject to criminal prosecution, with the penalty notices acting as an additional tool for enforcement bodies. Owners who fail to comply with the law may face fines, but advice and guidance will remain the primary enforcement tool for early intervention and redirection. Penalty notices will serve as a deterrent when advice and guidance prove insufficient.

Crackdown on illegal waste site operations

On 8 December 2023, Daniel Lawrence, the director of Lawrence Grab & Skip Hire Limited, was found guilty at Maidstone Magistrates’ Court of operating an illegal waste site in Ash, Kent.

The case emerged when the owners of Heaver Tropics Trading Estate noticed skips returning to the site filled with waste instead of being left empty. Mr Lawrence’s company had hired two adjoining plots at the estate and illegally tipped waste on the premises, leading to fires on multiple occasions. The landowners evicted the company, and the Environment Agency conducted an investigation. The company did not have the necessary permits or exemptions.

Mr Lawrence was fined £1,733, ordered to pay costs of £7,435, a victim surcharge of £173, and compelled to compensate the owners of Heaver Tropics Trading Estate with £10,850. He also received a five-year director disqualification order.

In a separate case, on 19 December 2023, Paul Riina-Moretti was sentenced to 10 months in prison and disqualified as a director for seven years at Nottingham Crown Court in relation to three offences of operating waste facilities without an environmental permit. The Court heard that a significant fire broke out at Oakham Farm, the largest site, in north Nottinghamshire, taking over a month to extinguish in the autumn of 2016.

An Environment Agency investigation found that Mr Riina-Moretti operated the sites illegally without an environmental permit, depositing large quantities of waste with no clear plan for processing. The fire at the Oakham Farm site resulted in clear-up costs of £478,000 for the landowner. Through CCTV footage, the investigation also identified Paul Billingham of Willenhall as a frequent visitor depositing waste at Oakham Farm. Mr Billingham admitted breaches of s33(1) of the Environmental Protection Act 1990 and received a suspended six-month custodial sentence as well as an order to perform 200 hours of unpaid work.