17.05.2024

Environmental weekly news round up – 17 May 2024

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law. NEWS

ROUND UP

Highway Hazard: The Overlooked Environmental Cost of Road Runoff

As the spotlight intensifies on sewage and agricultural pollutants impacting on our water ways in the UK, another significant environmental threat has been highlighted by the Chartered Institute of Waste Management (CWIM) and Stormwater Shepherds UK whose research published recently highlighted the largely unnoticed pollution from road runoff. This issue despite its profound impact on water quality and aquatic life has skirted around the radar of public scrutiny and regulatory action for too long.

The research highlights how road run-off pollution occurs when rainwater flushes toxic substances from roads into nearby waterways. This toxic cocktail includes polyaromatic hydrocarbons (PAH’s) heavy metals like mercury and cadmium, microplastics from tyre wear and various other pollutants like oil and herbicides. These substances are known to be highly detrimental to aquatic ecosystems causing problems ranging from cancer and endocrine disruption in wildlife to severe degradation of water quality.

Despite the clear risks associated with road runoff, the issue receives minimal attention compared to other types of pollution.

However, the existing infrastructure, including the 25,758 soakaways and outfalls managed by National Highways is now facing scrutiny. With an estimated 5% categorised as high risk the actual number could be much higher due to the largely unmonitored and uncontrolled nature of these sites. This gap in oversight it has been suggested needs a robust regulatory approach.

Jo Bradley from Stormwater Shepherds UK has said that the EA should not allow National Highways and other highway authorities to “decide for themselves whether or not their runoff is causing pollution and whether or not they need to do anything about it”.

The EA has responded to say that “We welcome this report and will consider how its findings can help inform our approach in tackling pollution from road runoff going forward”.

CWIM has suggested that simple passive treatment devices could significantly mitigate this pollution could be more widely implemented. These include manufactured devices like filters and separators, vegetative systems like biofilters and constructed wetlands and innovative technologies yet to be introduced to the market. Proper design implementation and maintenance of these systems could dramatically reduce the load of toxic substances entering our waterways.

To fund these measures policy suggestions include the introduction of extended producer responsibility levies on tyres, fuel oils and brake pads. Additionally, it is being proposed that future road planning should incorporate sophisticated drainage solutions to pre-emptively manage run-off.

For real progress and change to take place there needs to be a paradigm shift in how road run-off is viewed and managed. It requires the same level of regulatory attention and public concern as more ‘visible’ pollution like sewage. Only a through a concerted effort involving government action regulatory enforcement and public awareness can we hope to tackle this pervasive environmental problem.

Supreme Court limit liability for Japanese knotweed claims

In an important legal development, the Supreme Court has overturned a previous Court of Appeal decision regarding the invasive plant Japanese Knotweed. The case, Davies v Bridgend County Borough Council [2024] UKSC 15, centered on the nuisance claim brought by Marc Christopher Davies against the Council. The claim was based on the encroachment of Japanese Knotweed onto his property from adjoining council land and subsequent devaluing of his property.

Japanese Knotweed can severely impact a property in a number of ways including its value, marketability, and insurability. It is notoriously difficult and costly to eradicate. Historically, the courts have found that failure to control the plant and allowing it to spread to neighbouring properties can constitute a nuisance.

In this case, the Supreme Court addressed the issue of causation and therefore whether the diminution in value of Davies’ property was caused by a breach of duty of the Council. The Court found that the Council had failed to apply a satisfactory treatment programme, but the devaluing occurred before the Council’s breach began in 2013, which was well after the plant had spread onto the property. Consequently, the “but for” test applied by the Court eliminated the Council’s subsequent breach of duty as a causative factor.

The Supreme Court’s ruling clarifies that damages for diminution in value, which occurred prior to the defendant’s breach, will not form part of any award. This decision has significant implications for homeowners and sellers affected by Japanese Knotweed, potentially limiting the scope of future claims. It emphasises the importance of establishing a clear causal link between the breach of duty and the claimed damages and highlights the need for property owners to take proactive measures in managing the risks associated with Japanese Knotweed.

This landmark decision is expected to set a precedent for future cases involving Japanese Knotweed, providing clearer guidance on the legal responsibilities of landowners and the limitations of recoverable damages in such scenarios.

Recent High Court Decision finds Government in breach of Climate Change Act 2008

On 3 May, the High Court found that the Government’s Carbon Budget Delivery Plan is unlawful.

The legal challenge was brought by Environmental charities Friends of the Earth, ClientEarth and the Good Law Project against the Department for Energy Security and Net Zero over their decision to approve the Carbon Budget Delivery Plan in March 2023.

Since the Climate Change Act 2008, the Government has been required to set Carbon Budgets, which are legally binding 5 years caps on greenhouse gas emissions which are published 12 years in advance. The Carbon Budget Delivery Plan sets out more than 300 policies and proposals outlining how the Government will reach the emission reductions set out in their Carbon Budgets up to 2037.

Mr Justice Sheldon upheld four of the five grounds of the groups’ legal challenge, noting in his judgment, “it is not possible to ascertain from the materials presented to the Secretary of State which of the proposals and policies would not be delivered at all or in full.”

This is the second time in two years the Government has had to redraft its Net Zero strategy, following a previous challenge brought by the same three groups back in 2022 who successfully argued that the Government breached the Climate Act 2008 with its Net Zero plan lacking the detail to explain how the UK would cut it emissions.

The Secretary of State now has 12 months to draw up a new plan before Parliament that will enable the sixth carbon budget (2033-2037) to be met.

27 New Bathing Sites have been designated across England

On 13 May 2024, the Department for Environment, Food and Rural Affairs (DEFRA) announced that 27 new Bathing Sites will be designated across England following a public consultation held back in March of this year.

Further background details on bathing sites can be found in our previous round-up which covered the news of the consultation here. DEFRA received 10,962 responses to this consultation, which included responses from water companies, water sports organisations such as the Outdoor Swimming Society, the River Trust and the National Farmers Union (NFU). The overwhelming majority of responses agreed with the proposals to designate across all the new sites.

The new bathing sites, which includes 12 rivers, can be found across the country and takes the total number of bathing waters to 451 across England.

The Government is set to launch a consultation later this year on proposals to reform Bathing Water regulations in England to improve the water quality, increase monitoring and see greater flexibility around the dates of bathing water monitoring.

The new Sites have been designated ahead of the 2024 bathing water season which runs between 15 May and 30 September, of which the full list can be found below: