Environment Law Roundup

08/01/2018

As the new year begins, we take a look at some of the latest developments in Environment Law over the past few months.

New laws to be drafted for animal welfare standards

Environment secretary, Michael Gove announced in mid-December new legislation to protect the rights of animals will be drafted.  This comes in response to the public outcry that occurred in November when Ministers were accused of voting that animals cannot feel pain.

The circumstances surrounding the outcry was thus: during the debating of which EU laws will be enshrined into UK law after the UK leaves the EU, Ministers were considering whether to transfer NC 30 from the Lisbon Treaty which reads:

"In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage." 

By a small majority, MPs voted not to transfer the clause into UK law.

By failing to implement the clause, animal rights groups quickly pounced on the Government, fearing that by refusing to acknowledge animals as “sentient beings”, many of the animal rights law progressed by the EU, such as the ban on sealskin imports, the ban on conventional battery cages and the ban on cosmetics testing on animals, would be swept aside post-Brexit.

Regarding the Bill, which, among other changes will increase the maximum prison sentence for animal cruelty from six months to five years, Mr Gove stated:

"As we leave the EU we will deliver a Green Brexit, not only maintaining, but enhancing animal welfare standards.

"Animals are sentient beings who feel pain and suffering, so we are writing that principle into law and ensuring that we protect their welfare.

"Our plans will also increase sentences for those who commit the most heinous acts of animal cruelty to five years in jail.

"We are a nation of animal lovers, so we will make Brexit work not just for citizens but for the animals we love and cherish too."

Changes put forward following renewable obligations consultation

The government has published responses to its consultation on proposed new rules for bioliquids, wastes and residues under the renewables obligation (RO).  As a result of the responses, the government made ‘straightforward’ changes to the RO legislation to implement the Indirect Land-use Change Directive correctly.
The changes were:

• Amend the existing definition of ‘waste’ in the RO legislation to take account of the new definition introduced by the ILUC Directive.  This will clarify that substances will not be considered waste where they have been deliberately modified or contaminated to fall within the definition of waste set out in Article 3(1) of Directive 2008/98/EC. 

• Include a new definition for ‘starch-rich crops’ to clarify what is meant by the ‘starch-rich crops’ for the data collection requirements for bioliquids. 

• Clarify the meaning of ‘residue from processing’.  If the primary goal of production is to produce the residue, it will not be considered ‘residue from processing’.

• Clarify the meaning of ‘residue from agriculture, aquaculture, fisheries or forestry’. This will make it clear that references to residue from agriculture, aquaculture, fisheries and forestry are to residue directly generated by agriculture, aquaculture, fisheries and forestry and do not include residues from associated industries or processing residues.  

• Amend the requirement for certain bioliquids to meet 60% minimum greenhouse gas emission savings compared to fossil fuel in order to receive support under the RO. 

• Remove the current restriction on the use of default values when calculating the greenhouse gas emission savings from the use of bioliquids. 

• Remove the existing definition of ‘disaggregated default values for cultivation’.

Supreme Court rules on when planning authorities must give reasons for granting planning permission - Dover District Council and another v CPRE Kent [2017] UKSC 79, [2017] All ER (D) 22 (Dec)

The Supreme Court approved the judgment handed down by the Court of Appeal in Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71, [2017] 1 WLR 3765, which stated that a planning authority had a duty to provide proper reasons when granting planning permission.

By way of background, the statutory requirement for planning authorities to provide reasons for granting planning permission was abolished in 2013.
In Dover DC the local authority's planning committee granted planning permission to a developer for a large residential development in an ‘area of outstanding natural beauty’, despite a planning officers’ report recommending that consent should only be granted for fewer dwellings.

In endorsing Oakley, the Supreme Court held that planning authorities have a duty to provide reasons for granting planning permission in situations where fairness required them to do so.  These types of circumstances could include where there was fierce public opposition to the granting of the permission and against the advice of planning officers’ for projects which involved ‘major departures from the development plan, or from other policies of recognised importance’, such as the specific policies identified in footnote 9 to paragraph 14 of the National Planning Policy Framework.

Regarding the uncertainty surrounding when a planning authority would be required to provide reasons for its decisions, the court stated in obitor:

‘As to the charge of uncertainty, it would be wrong to be over-prescriptive, in a judgment on a single case and a single set of policies. However, it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically, they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the specific policies identified in the NPPF’.

Unfortunately, this judgment still leaves many questions unanswered, such as what constitutes major public opposition and what is a “major departure” from a development plan?

It is inevitable that there will be further litigation to clarify these points.