Interpreting Environmental Offences: The Need for Certainty 9781474203449

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ACKNOWLEDGEMENTS

Thanks go to my PhD supervisor, Professor Martin Dixon, for the help and support he has given me both during my thesis and beyond, and to my Head of Department, Professor Phillip Allmendinger, for his advice and friendship. I am grateful too to my PhD examiners, Professor Christopher Rodgers and Dr Carolyn Abbott, and to my anonymous reviewers, for their insightful comments. Thanks also to my parents for providing encouragement, therapy, and home comforts during the process. Most of all, thanks to my husband, Kester, for continuing to prove how often I am in the wrong.

TABLE OF CASES

English and Welsh Aggregate Industries UK Ltd v English Nature [2002] EWHC 908 (Admin), [2003] Env LR 3 .............................................................................89 Aldred’s Case (1610) 9 Coke Reports 57b, 77 ER 816 (KBD) .............................................192 Anthony v The Coal Authority [2005] EWHC 1654 (QB), [2006] Env LR 17 ..............................................................................................................160 Attorney General v Corporation of Nottingham [1904] 1 Ch 673 (ChD) ....................................................................................................156 Barr and others v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2013] QB 455........................................................................................161 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591........................................................................49 Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 (HOL) ...........................................................................................145, 160 Castle Cement v Environment Agency [2001] EWHC Admin 224, [2001] Env LR 46 ....................................................12, 77, 82–83, 113 Circular Facilities v Sevenoaks DC [2005] EWHC 865 (Admin), [2005] Env LR 35 ...............................................................88, 99, 85 Cozens v Brutus [1973] AC 853 (HOL) .................................................................................80 Customs and Excise Commissioners v ApS Samex [1983] 1 All ER 1042 ..........................................................................................................31 Dyke v Elliott (1871-73) LR 4 PC 184 ......................................................................27, 36, 143 E.ON UK Development Ltd v King’s Lynn and West Norfolk Council [2012] PAD 29 .........................................................................91, 102 Elliott v Secretary of State for Communities and Local Government [2012] EWHC 1574, [2013] Env LR 5 ................................................91 Environment Agency v Inglenorth [2009] EWHC 670 (Admin), [2009] Env LR 10 ........................................................78, 81–84, 94, 96, 128 Environment Agency v Thorn International UK [2008] EWHC 2595 (Admin), [2009] Env LR 1 ...............................................................77, 79, 84 Feeney v Oxford City Council [2011] EWHC 2699 Admin, [2013] Env LR 5 ..................................................................................................................61 Feeney v Secretary of State for Transport [2013] EWHC 1238 (Admin), [2013] Env LR 34 ...................................................89–92, 100, 196 Fisher v English Nature [2004] EWCA Civ 663, [2004] 4 All ER 861 ............................................................................................................89 Fothergill v Monarch Airlines [1981] AC 251 .........................................................................49

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Table of Cases

Gillespie v First Secretaty of State [2003] EWCA Civ 400, [2003] Env LR 30 ................................................................................................................90 Hamilton v Mendes (1761) 2 Burrow 1198, 97 ER 787.........................................................49 Hounslow London Borough Council v Powell [2011] UKSC 8, [2011] 2 AC 186 ..................................................................................................................25 Lawrence v Fen Tigers [2014] UKSC 13, [2014] 2 WLR 433 ......................................154, 164 Long v Monmouthshire County Council [2012] EWHC 3130 .........................................90, 92 Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104 ..................................................................................................................25 Metropolitan Asylum District v Hill (1880-1881) LR 6 App Cas 193 (HOL) .................................................................................................156 Millar v Taylor, 98 ER 201 (KBD) ........................................................................................145 Milton Keynes v Fuller [2011] EWHC 1967 (Admin), [2011] Env LR 31 ........................................................................63, 79, 95–96, 142, 191–92 National Rivers Authority v Yorkshire Water Services Ltd. [1995] 1 AC 444 (HOL) .....................................................................................................63 North Uist Fisheries v Secretary of State for Scotland 1992 SC 33, 1992 SLT 333 ...............................................................21, 71, 89, 91, 101, 196 Pepper v Hart [1993] AC 593 (HOL) ...................................................................................168 R (Akester) v DEFRA [2010] EWHC 232 (Admin), [2010] Env LR 33 ..................................................................................................90–92, 106 R (BBC) v ProLife Alliance [2003] 2 All ER 977 (HOL) .....................................................169 R (Catt) v Brighton and Hove City Council [2007] EWCA Civ 298, [2007] Env LR 32 .....................................................................................90 R (Crest Nicholson) v Secretary of State for the Environment [2010] EWHC 1561 (Admin), [2011] Env LR 1 ............................................63, 66, 86, 88, 97, 195 R (Edwards) v Environment Agency (No.2) [2008] UKHL 22, [2008] Env LR 34..................................................................................92 R (Morge) v Hampshire County Council [2011] UKSC 2, [2011] 1 All ER 744 ............................................................................................................91 R (National Grid Gas) v Environment Agency [2007] UKHL 30, [2007] 3 All ER 877 .............................................................................67, 87–88, 97–98, 195 R (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 A.C. 349 .......................................49 R (OSS Group) v Environment Agency [2007] EWCA Civ 611, [2008] Env LR 8 .........................................................................................12, 77, 80, 82–83, 93, 96, 113 R (Redland Minerals Ltd) v Secretary of State for the Environment, Food and Rural Affairs, [2010] EWHC 913 (Admin), [2011] Env LR 2 .................................................................65, 86–87 R (Royal Society for the Protection of Birds) v Secretary of State for Environment Food and Rural Affairs, [2014] EWHC 1645 (Admin) ........................................................................................................67 R v Ezeemo [2012] EWCA Crim 2064, [2013] Env LR 15 ........................................78–79, 84 R v Ideal Waste Paper Co Ltd [2011] EWCA Crim 3237, [2012] Env LR 19 ....................................................................................................11, 80, 84

Table of Cases

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R v International Stock Exchange ex p Else [1993] QB 534 ...................................................31 R v Jones [2011] EWCA Crim 3294, [2012] Env LR D2 .................................................83, 84 R v Misra and Srivastava [2004] EWCA Crim 2375; [2005] 1 Cr App R 21 .........................................................................................................50 R v Rimmington [2005] UKHL 63; [2006] 1 A.C. 459 ..........................................................50 R v W [2010] EWCA Crim 927, [2011] 3 All ER 691 .........................................78, 82, 83–84 Rapier v London Tramways Company [1893] 2 Ch 588 (COA)..................................155, 158 Re Heydon’s Case (1584) 3 Coke 7a, 76 ER 637...................................................................139 Rylands v Fletcher (1868) LR 3 HL 330 (HOL) ...........................................................159, 160 Scott v Westminster City Council [1995] RTR 327 (CA) .................................................63, 95 Sedleigh-Denfield v O’Callaghan [1940] AC 880 (HOL) ............................................155, 159 Southern Water Authority v Nature Conservancy Council [1992] 1 WLR 775, [1992] 3 All ER 481 (HOL) .........................................89, 90, 101, 197 Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248, [2013] 1 All ER 694 ..........................................................................................................159 Stevens v Bromley London Borough Council [1972] Ch 400 (COA) ...........................................................................................................192, 195 Sussex Peerage Case (1844) XI Clark & Finnelly 85, 8 ER 1034 (HOL) ........................................................................................................32, 142 Sweet v Secretary of State for the Environment (1989) 1 Journal of Environmental Law 245 (QBD) ......................................89, 90, 100, 157, 196 Thames Waste Management v Surrey County Council [1997] Env LR 148 ....................................................................................................... 93–94 Thames Water Utilities Ltd v Bromley Magistrates’ Court [2013] EWHC 472 (Admin), [2013] Env LR 25 .......................................................79, 192 Trailer & Marina (Leven) Ltd v Secretary of State [2004] EWCA Civ 1580, [2005] 1 WLR 1267 ................................................................89, 99, 100 Vallejo v Wheeler (1774) 1 Cowpoer 143, 98 ER 1012 .........................................................49 Wheeler v Saunders [1996] Ch 19 (COA) ............................................................................156 European Administration des Douanes v Société Anonyme Gondrand Frères and Société Anonyme Garancini C 169/80, [1981] ECR 01931........................................47, 182 Amministrazione delle Finanze dello Stato v Simmenthal SpA C-106/77 [1978] ECR 00629.........................................................................................................26, 30 Annalisa Carbonari and Others v Università degli studi di Bologna, Ministero della Sanità, Ministero dell’Università e della Ricerca Scientifica and Ministero del Tesoro C-131/97 [1999] ECR I-1103 ..................................31 ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer and Vereniging Dorpsbelang Hees, Stichting Werkgroep Weurt and Vereniging Stedelijk Leefmilieu Nijmegen v Directeur van de dienst Milieu en Water van de provincie Gelderland, Joined Cases C-418/97 and C-419/97, [2000] ECR I-04475 ....................................................................62, 105, 112–13 AvestaPolarit Chrome Oy C-114/01, [2003] ECR I-8725 ....................................................104 Bauhuis v Netherlands C 46/76, [1977] ECR 5 ...................................................................181 Bosphorus v Minister for Transport C-85/95, [1996] ECR I- 3953, 1-3982 ........................178

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Table of Cases

Brady v Environmental Protection Agency, C-133/12 3rd October 2013 (not yet published) ................................................................................62 Briels and Others v Minister van Infrastructuur en Milieu C-521/12, not yet published .....................................................................................107, 108 Cascina Tre Pini Ss v Ministero dell’Ambiente e della Tutela del Territorio e del Mare C-301/12 (not yet published) ..........................................................21 Commission of the European Communities v French Republic C-92/87 [1989] ECR 0405 ..................................................................................................47 Commission of the European Communities v Ireland C-282/02 [2005] ECR I-04653............................................................................................................47 Commission v Netherlands C-144/99, [2001] ECR I-03541 ................................................181 Consorzio del Prosciutto di Parma and Salumificio S. Rita SpA v Asda Stores Ltd and Hygrade Foods Ltd C-108/01 [2003] ECR I-05121......................................................................................................48, 49 Criminal Proceedings against Euro Tombesi, Joined Cases C-304/94, C-330/04, C-342/94 and C-224/95, [1997] ECR Page I-03561 ........................................62 Criminal proceedings against G. Vessoso and G. Zanetti C-207/88, [1990] ECR I-01461............................................................................................62, 104, 113 Criminal proceedings against Kolpinghuis Nijmegen BV C-80/86 [1987] ECR 3969.................................................................................................................28 Criminal proceedings against Luciano Arcaro C-168/95 [1996] ECR I-4705..............................................................................................................28 Criminal proceedings against Maria Pupino C-105/03 [2005] ECR I-5825..............................................................................................................31 Deutsche Milchkontor GmbH and others v Federal Republic of Germany C-205/82 [1983] ECR 2633 ................................................................................47 Emsland-Stärke GmbH v Landwirtschaftskammer Hannover C-94/05 [2006] ECR I-02619 .............................................................................................48 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich C-112/00 [2003] ECR I-5659 .........................................26 Europemballage Corp & Continental Can Co v Commission C 6/72, [1973] ECR 215 ...................................................................................................178 Flaminio Costa v ENEL 6/64 [1964] ECR 585 .......................................................................26 Fratelli Costanzo SpA v Comune di Milano C-103/88 [1989] ECR 1839 .............................................................................................................................31 Gebroeders van Es Douane Agenten BV v Inspecteur der Invoerrechten en Accijnzen C-143/93 [1996] ECR I-00431 ...............................................47 Halifax plc, Leeds Permanent Development Services Ltd and County Wide Property Investments Ltd v Commissioners of Customs & Excise C-255/02 [2006] ECR I-01609 .............................................................48 Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH and Maatschappij tot voortzetting van de zaken der Firma Willem van Rijn 13/61 [1962] ECR 00045......................................................47, 181 Koninklijke Coöperatie Cosun UA v Minister van Landbouw, Natuur en Voedselkwaliteit C-248/04 [2006] ECR I-10211 ..............................................47 Konstantinos Adeneler and Others v Ellinikos Organismos Galaktos C-212/04 [2006] ECR I-6057 ..............................................................................31

Table of Cases

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Landelijke Vereneging to Behold van deer Waddenzee v Staatssecretairs van Landbouw, Natuurbeheer en Visserrij C-127/02, [2004] ECR I-7405 ...................................................71, 89, 62, 100–01, 106–07, 137, 187, 196–97 Marleasing SA v La Comercial Internacional de Alimentacion SA C-106/89 [1990] ECR I-04135.........................................................26, 31 Merck v Hauptzollamt Hamburg-Jonas C 292/82 [1983] ECR 1-3781 .......................178, 185 Opinion 2/94 [1996] ECR I-1759 ...........................................................................................26 Palin Granit Oy and Vehmassalon kansanterveystyön kuntayhtymän hallitus C-9/00 [2002], ECR I-03533 ............................................... 104–05 Peter Leifer and Others C-83/94, [1995] ECR 1-3231 .........................................................178 R (Factortame Ltd) v Secretary of State for Transport (No 2) [1992] 1 AC 603......................................................................................................26 R (Mayer Parry Recycling Ltd) v Environment Agency, C-444/00, ECR 2003 I-06163 .............................................................................................77 Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo economico C-378/08, [2010] ECR 00 ........................................................105, 194 Schulte v Deutsche Bausparkasse Badenia AG C-350/03, [2005] ECR I-09218..........................................................................................................181 Simon JM van Munster v Rijksdienst voor Pensioenen C-165/91 [1994] ECR I-4661 .............................................................................................31 Skoma-Lux sro v Celní ředitelství Olomouc C-161/06 [2007] ECR I-10841......................................................................................................47, 48 Société d’investissement pour l’agriculture tropicale SA (SIAT) v Belgian State, C-318/10, unreported ..................................................................................48 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health Case 283/81 [1982] ECR-03415 ...................................................................179, 183 Stichting ROM-projecten v Staatssecretaris van Economische Zaken C-158/06 [2007] ECR I-05103 ..........................................................48 Sweetman v An Bord Pleanala C-258/11 (not yet published)...............................100, 107–08 Unión de Pequeños Agricultores v Council C-50/00 [2002] ECR I-6677............................................................................................................183 Van Gend en Loos v Nederlandse Administratie der Belastingen, C-26/62, ECR special edition 00001, [1963] ECR 12 .............................178, 179, 181, 185 Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities C-402/05 and C-415/05 [2008] ECR I-6381 ..............................................26 European Court of Human Rights Arrondelle v United Kingdom, (1982) 26 DR 5 ......................................................................25 Baggs v United Kingdom, (1985) 44 DR 13............................................................................25 Budayeva v Russia, Apps. No. 15339/02, 21166/02, 20058/02, 11673/02 & 15343/02 (ECtHR, 29 September 2008)........................................................25 Guerra v Italy, ECHR 1998-1 210 ..........................................................................................25 Lopez Ostra v Spain, Series A no 303-C (1995) 20 EHRR 277 .............................................25 Oneryildiz v Turkey, ECHR 2004-XII 79 ...............................................................................25 Takin v Turkey, ECHR 2004-X 179 ........................................................................................25

TABLE OF LEGISLATION AND CONVENTIONS

United Kingdom Conservation of Habitats and Species Regulations 2010 passim Regulation 9(1) ...................................................................................................................71 Regulation 13 ......................................................................................................................71 Regulation 15 ......................................................................................................................71 Regulation 19 ......................................................................................................................71 Regulation 19(1) ...............................................................................................................119 Regulation 19(2)(a) ............................................................................................................71 Regulation 21 ..........................................................................................................12, 71, 72 Regulation 25 ......................................................................................................................72 Regulation 25(1) .................................................................................................................72 Regulation 26 ......................................................................................................................72 Regulation 26(3) .................................................................................................................72 Regulation 26(8) .................................................................................................................72 Regulation 27 ......................................................................................................................72 Schedule 1, paragraph 1(1) ................................................................................................73 Countryside and Rights of Way Act 2000 .....................................................................67, 102 Environment Act 1995 ............................................................................................................63 Environmental Damage (Prevention and Remediation) Regulations 2009 passim Regulation 2(1) ...................................................................................................................72 Regulation 4 ........................................................................................................................72 Regulation 4(5) ...................................................................................................................67 Regulation 5 ........................................................................................................................72 Regulation 5(1) ...................................................................................................................73 Schedule 1, paragraph (4)(2) EDR 2009 ...........................................................................73 Schedule 2 ...........................................................................................................................72 Environmental Permitting (England and Wales) Regulations 2010 SI 2010/695..........................................................................................................................63 Regulation 38 ........................................................................................................12, 63, 122 Environmental Protection Act 1990 Part II passim Part II A passim Section 33 ..............................................................................................................11, 61, 193 Section 33(1)(a) passim Section 33(2) .......................................................................................................................61 Section 33(7)(a) ..................................................................................................................61 Section 33(7)(c) ..................................................................................................................61

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Table of Legislation and Conventions

Section 33(8) .......................................................................................................................61 Section 33(11) .....................................................................................................................62 Section 33(12) .....................................................................................................................62 Section 33A .........................................................................................................................61 Section 33B..........................................................................................................................61 Section 35–section 44 .........................................................................................................61 Section 78A(2) ............................................................................................................64, 194 Section 78A(2)(a) ...............................................................................................................64 Section 78A(2)(b) ...............................................................................................................64 Section 78A(4) ....................................................................................................................64 Section 78A(5) ....................................................................................................................64 Section 78A(6) ....................................................................................................................64 Section 78A(9) ..................................................................................................................195 Section 78B(1) ....................................................................................................................64 Section 78B(2) ....................................................................................................................64 Section 78B(3) ....................................................................................................................65 Section 78E ..........................................................................................................................65 Section 78E(1).....................................................................................................................65 Section 78E(3).....................................................................................................................65 Section 78E(4).....................................................................................................................65 Section 78E(4)(a) ................................................................................................................65 Section 78E(4)(b) ...............................................................................................................65 Section 78E(5).....................................................................................................................64 Section 78F ....................................................................................................................66, 86 Section 78F(2) .....................................................................................................................66 Section 78F(4) ...............................................................................................................66, 87 Section 78F(6) .....................................................................................................................64 Section 78G .........................................................................................................................66 Section 78M ..................................................................................................................12, 66 Section 78M(4) ...................................................................................................................66 Section 78M(5) ...................................................................................................................66 Section 78P(2)(b) ...............................................................................................................64 Section 78Q(6) ....................................................................................................................64 Section 78W ........................................................................................................................64 Human Rights Act 1998 Section 2(1)(a) ....................................................................................................................25 Section 3(1) .........................................................................................................................25 Section 7 ..............................................................................................................................25 Waste (England and Wales) Regulations 2011 ................................................................60, 61 Wildlife and Countryside Act 1981 passim Section 28 ................................................................................................................67, 69, 99 Section 28(1) .......................................................................................................................69 Section 28(4) .......................................................................................................................69 Section 28E ........................................................................................................69, 70, 71, 92 Section 28E(1).....................................................................................................................12 Section 28(J) .......................................................................................................................69 Section 28K .........................................................................................................................70

Table of Legislation and Conventions

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Section 28K(1) ....................................................................................................................70 Section 28K(3) ....................................................................................................................70 Section 28L ..........................................................................................................................70 Section 28N .........................................................................................................................70 Section 28N(2) ....................................................................................................................70 Section 28P(1).........................................................................................................12, 70, 71 Section 28P(4).....................................................................................................................70 Section 28P(6).....................................................................................................................70 Section 28P(8).....................................................................................................................70 Section 28Q(4) ....................................................................................................................70 Section 31 ............................................................................................................................70 Section 31(5) .......................................................................................................................70 Section 35 ............................................................................................................................67 European Charters and Treaties Charter of Fundamental Rights of the European Union .....................................................26 Charter of Fundamental Rights of the European Union Article 37 .............................................................................................................................26 Charter of Fundamental Rights of the European Union Chapter 6 .............................................................................................................................27 Treaty on European Union Article 6(3) ..........................................................................................................................26 Directives Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora as amended (Habitats Directive) passim Article 4(2) ..........................................................................................................................71 Article 6 .............................................................................................................................119 Article 6(3) ................................................................................................................100, 107 Article 6(4) ........................................................................................................................137 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (Environmental Liability Directive) passim Annex III .............................................................................................................................72 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (Waste Framework Directive) passim Article 2 ...............................................................................................................................62 Article 3(1) ..................................................................................................................61, 126 Article 4 ...............................................................................................................................60 Article 5 .......................................................................................................................62, 185 Article 6 .......................................................................................................................62, 185 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (Wild Birds Directive) passim

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Table of Legislation and Conventions

European Convention on Human Rights European Convention on Human Rights..............................................................................89 Article 6 .........................................................................................................................26, 27 Article 7 .........................................................................................................................26, 35 Article 8 ...............................................................................................................................26 Article 10 .....................................................................................................................26, 169 Article 11 .............................................................................................................................26

1 Introduction Environmental regulation in the United Kingdom is primarily pragmatic. Law and guidance are drafted ‘practically’,1 and the policy of regulatory agencies is one of mutual co-operation, dialogue and negotiation.2 Only rarely will the regulator resort to imposing criminal penalties onto those who damage, or risk damaging, the environment.3 When this does happen, its rarity means that there are problems encountered by both the regulator, and those subject to the regulation, in predicting the outcome of each case, and in understanding the applicable standards. This difficulty has consequences. It feeds into those earlier stages where negotiation and dialogue are key. The legal background is essential to that negotiation, but the fluidity of the law in practice, does not, to mix metaphors, provide a solid foundation for such a process. This book considers, in essence, what happens when environmental law, in the form of criminal prohibitions on action, or criminal sanctions for inaction, comes before the courts. It is about how we conceive of environmental protection and criminal sanctions ensuring such protection. Most importantly, it is about the role that the judiciary has to play in this, and how a situation of relative certainty and predictability can and must be constructed. It will be shown that there is a need for such certainty in the interpretation of environmental offences. The current levels of uncertainty are unacceptable. National courts’ approaches to regimes concerned with preventing environmental damage by controlling the use of land must be reformed so as to provide the

1 The relevant agencies make it clear that the guidance is intended to be ‘user-focussed’. See HM Government, ‘Red Tape Challenge’, accessible at www.redtapechallenge.cabinetoffice.gov.uk/home/ index/; DEFRA, ‘Smarter Environmental Regulation Review: Phase One Report: Guidance and Information Obligations’ (London, DEFRA, 2013) at 5; and DEFRA, ‘Improved Environment Guidance for Business’, accessible at www.gov.uk/government/news/improved-environment-guidance-forbusinesses (16 May 2013). A similar approach is taken by the EU Better Regulation Programme. European Commission, ‘Better Regulation—Simply Explained’ (Luxembourg, Office for Official Publications of the European Communities, 2006); D Keyaerts, ‘The Impact of Better Regulation in the Case Law of the European Court of Justice’ (2012) 2 European Journal of Risk Regulation 241, 242. 2 Natural England, ‘Compliance and Enforcement Position’ (London, Natural England, 2011) and Environment Agency, ‘Enforcement and Sanctions Statement’, Policy 1335_10 (previously EAS/8001/1/1), v.2 (London, Environment Agency, 2011), accessible at www.gov.uk/government/ uploads/system/uploads/attachment_data/file/292830/LIT_5197_dbdf7a.pdf. 3 R Macrory, Regulation, Enforcement and Governance in Environmental Law (Oxford, Hart Publishing, 2010) 47, 357.

2

Introduction

solid foundation required.4 Environmental offences, the backbone of the waste, contaminated land, and habitats’ protection regulations, are currently being interpreted in a way that is highly unpredictable. Much of the jurisprudence is incoherent: the administrative guidance is vague and unhelpful. The result is that these offences, and the regimes that contain them, are currently unable to operate legitimately in the face of scientific uncertainty and administrative complexity; a perception of immaturity results. There is considerable discontent with the existing rules in the wider business and legal community, and the regulations risk breaching due process thanks to the vagueness of the legal tests being applied in individual cases. The law, as it is currently being interpreted, in short, is bad as law. It is crucial that this difficulty with interpretation is tackled, and that is what this book attempts to achieve. It argues that a solution can be reached by adopting a traditional, common law approach to interpretation, when such an approach is tailored to the environmental context. This approach considers the language of the statute as a matter of primacy, and utilises a highly contextual, and judicially-developed, understanding of environmental harm to help negotiate the peculiar elements of environmental regulation that make interpretation in this context especially difficult. This approach can, and should, be adopted as a framework for interpretation notwithstanding the pervasive, European Court of Justice-mandated, teleological approach. The adoption of such a framework can solve a practical problem facing both regulator and regulated. Unfortunately, the reasoning employed by the judiciary in environmental regulation has been largely ignored in the academic literature to date.5 A new framework, which will assist the courts in the process of interpretation, ought to be developed. The framework developed here is one which brings well-established principles of common law reasoning into environmental law. The need for a new approach, and the great benefits that its adoption would provide, are demonstrated in this book through consideration of evidence drawn from these three regimes—waste, contaminated land, and nature conservation in the form of habitats’ protection. When considered together there is sufficient evidence of a pattern of cause and effect to identify the problem outlined here. By focusing on these regimes, rather than environmental law in general, it is possible to be highly specific as to instances of the uncertainty problem at work. However, by drawing links between these regulatory systems, we are able to systematise and render more predictable their application than would be possible if these regimes were looked at in isolation.

4 ‘National courts’ and ‘domestic courts’ refers to the courts of England and Wales and, where relevant, of Scotland. 5 A notable exception is D Fisher, Legal Reasoning in Environmental Law (Cheltenham, Edward Elgar Publishing, 2013). The breadth of the coverage of Fisher’s work, however, limits the detail of his analysis. See OW Pedersen, ‘Legal Reasoning in Environmental Law: A Study of Structure, Form and Language’ (2014) 26 Journal of Environmental Law 357.

Introduction

3

The framework for interpretation which emerges is one that integrates substantive justifications for a rule’s content into the process of interpretation, but one which recognises that this must take place in the context of principle, and not to the detriment of certainty. The principles of interpretation developed under the common law in relation to criminal law form the central part of the solution presented. The key elements that ought to be included in this framework are considered in this book. There is detailed examination of harm in the form of the ‘mischief ’ that each regime seeks to tackle as a control on the legitimate bounds of regulation. It is proposed that a clear understanding of this harm should be used as a mechanism to limit expansive, unprincipled interpretation. Central to this is ‘the principle of environmental harm’. Examples of the common law approach to rules concerning land use show the process that can be used in this regulatory context too. Furthermore, as far as domestic courts are concerned, the approach advocated is already present in the jurisprudence relating to criminal law in other contexts, and given the criminal law context here, there is legal precedent for the adoption of such an approach. It is therefore both useful and plausible as a tool to assist in principled and certain interpretation in relation to environmental offences. ***** The approach taken in this book is primarily doctrinal. There are environmental law scholars who argue that traditional forms of scholarship are inadequate in the face of the changing global climate, and the specific methodological challenges that such developments bring.6 Their focus is on achieving environmental protection, and seeking ‘a more conscious research focus on the efficiency and effectiveness of the environmental law system as a whole’.7 They see the purposes of environmental law scholarship as, ‘facilitat[ing] effective teaching of environmental law to future practitioners … provid[ing] a context for teachers of environmental law to advance their knowledge; and … systematically improv[ing] environmental law outcomes’.8 Environmental law scholarship must, however, aim to improve the quality of environmental law from many different perspectives, not just from the lens of ensuring environmental protection. This book therefore pursues an analysis which the aims to increase levels of certainty and predictability.

6 P Martin and D Craig, ‘Accelerating the Evolution of Environmental Law through Continuous Learning from Applied Experience’, presented at IUCN Academy of Environmental Law Colloquium 2013, University of Waikato, accessible at http://iucnacademy2013.org.nz/papers/ (draft—cited with the permission of the authors); NA Robinson, ‘Environmental Principles and Norms Amidst the Anthropocene’, presented at IUCN, Academy of Environmental Law Colloquium 2013, University of Waikato, accessible at http://iucnacademy2013.org.nz/papers/. To an extent Fisher and others also take this view: E Fisher et al, ‘Maturity and Methodology: Starting a Debate About Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213. 7 Martin and Craig, ‘Accelerating the Evolution of Environmental Law’ (n 6) 1. 8 ibid.

4

Introduction

Such an approach appears to be somewhat ‘out of fashion’. Presented with the advent of the ‘anthropocene’9 it is argued by some that the law should adapt its principles;10 that rule of law values should be seen as encompassing a right to environmental protection;11 and that there is a need to go beyond certain, predictable, state-managed control towards collaborative and non-state forms of governance.12 The moral imperative of ecological preservation, and the justice inherent in preventing degradation, are seen as trumping the need for those who wield state power to ensure that those subject to that power are able to organise their life in accordance with the rules that bear upon them. But this argument overlooks the fact that rules concerning ecological preservation, and regimes in place that seek to achieve this, require state-backed power to be enforceable against those whose self-interest dictates that they not comply. It also overlooks the fact that state power, when exercised, must be justified not just in policy terms, but also in legal terms. New forms of governance, new legal principles, and a new approach to law, are expressions of a very real desire to protect the planet. But that does not mean that we must conclude that such rules are necessarily good law. This recognition works hand in hand with the legalistic approach taken to analysis to point in the direction of a solution to a pressing regulatory problem. This book is not seeking to show that alternative regulatory approaches are without merit, but simply that whilst such approaches are developing, the law we do currently have can be better. Combining such analysis, and maintaining a desire for compliance with traditional legal values, highlights the need to undertake the seemingly modest task of attempting to ensure that the environmental law that we do have, law which is based on a traditional understanding of the relationship between the governed and those who govern, is optimal. The modesty of the task when compared with the construction of new legal orders that fundamentally modify how we conceive of governance may make it seem trivial. It is not. In light of the pursuit of ‘new governance’ by many environmental law scholars, the rules that are in place, and by which people currently must order their lives and businesses, are somewhat ignored. More than this, they are being seen as irrelevant. To the regulated, however, they are hugely significant. This alone should justify an attempt to systematise that law, to provide a degree of certainty in its operation, and to examine the 9 The concept of the anthropocene was first used by EF Stoermer but was popularised by P Crutzen amongst others. It is used to denote a new geological era defined by man’s influence on the geology of the Earth. See, for example, PJ Crutzen and EF Stoermer, ‘The “Anthropocene”’ (2000) 41 Global Change Newsletter 17 and W Steffen, PJ Crutzen and JR McNeill, ‘The Anthropocene: Are Humans Now Overwhelming the Great Forces of Nature?’ (2007) 36 Ambio 8. 10 Robinson, ‘Environmental Principles and Norms’ (n 6). 11 For example, see JH Knox, ‘Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ (Preliminary Report, UN Doc. A/HRC/22/43, 24 December 2012). 12 C Holley and N Gunningham, ‘Natural Resources, New Governance and Legal Regulation: When Does Collaboration Work?’ (2011) 24 New Zealand Universities Law Review 309 and C Holley, N Gunningham and C Shearing, The New Environmental Governance (Abingdon, Earthscan, 2011).

Structure

5

role of the enforcers of that law. Sanctions can then be imposed in the knowledge that the rules were ascertainable in advance. Any reluctance to use criminal law in this area will hopefully thereby be overcome, thus rendering the regulations more, not less, effective as a deterrent.13 The approach here will not necessarily lessen the degree of environmental protection in the long run, but it will ensure that environmental protection is achieved on the back of good regulation.

I. Structure This book therefore analyses a problem plaguing the interpretation of certain criminal offences. These offences arise under the waste, contaminated land, and nature conservation provisions. The problem is a problem of uncertainty and incoherence. In order to demonstrate this uncertainty this book proposes a definition of practical legal uncertainty and examines the three regimes in light of this definition. It then discusses the immediate and deeper causes of the uncertainty that currently exists. It proposes a solution to this problem in the form of a framework for interpretation that relies on common law approaches. The solution requires that the courts move away from a teleological approach that sees the only goal of the regulations as environmental protection. Instead, a judiciallydeveloped concept of harm is utilised as means to homogenise approaches to interpretation, and to develop a more certain and predictable jurisprudence without detracting from the primacy of linguistic interpretation. ***** The remainder of this chapter outlines and justifies the scope of the argument presented here and the motivation behind the book. There are four motivating factors—the academic challenge raised by Fisher;14 the current regulatory agenda expressed in the ‘red tape challenge’15 and the Smarter Environmental Regulation Review;16 the UK Environmental Law Association (UKELA) report on the state of environmental law in the UK;17 and, most importantly, the criminal law context.

13 M Faure and G Heine, Criminal Enforcement of Environmental Law in the European Union (The Hague, Kluwer Law International, 2005) 56–62; and Macrory, Regulation, Enforcement and Governance (n 3) 47–49. 14 E Fisher, ‘Unpacking the Toolbox: Or Why the Public/Private Divide is Important in EC Environmental Law’ (FSU College of Law, Public Law Working Paper No 35, 2001), accessible at http://ssrn.com/abstract=283295 or http://dx.doi.org/10.2139/ssrn.283295, 17. 15 HM Government, ‘Red Tape Challenge’ (n 1). 16 DEFRA, ‘Smarter Environmental Regulation Review’ (n 1). 17 UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Law in 2011–2012: Is There a Case for Legislative Reform’ (London, UKELA, King’s College London and Cardiff University, 2012).

6

Introduction

This chapter then examines the methodology employed to analyse the existence, causes, and solutions to the certainty problem. Chapter two then places environmental criminal law in context. It is on the boundary line between many areas of law and its complexity as law arises, in part, from the compromises arising from this siting within the legal system as a whole. It considers the place of environmental criminal law against the background of: property rights; human rights; questions of risk and scientific uncertainty; national and European law and the jurisdictional overlap; questions of judicial reasoning; and criminal law. In chapter three, a theory of practical legal certainty is developed. It will become clear that there are multiple levels at which certainty can operate as a criterion for good law. However, it is argued that the focus should be on formal legal certainty characterised by transparent, accessible, and coherent law. The jurisprudence of the European Court of Justice (ECJ) and national courts will be examined to demonstrate the sorts of uncertainties which may jeopardise the legitimacy of criminal law provisions in practice and to provide further examples as to what the definition of legal certainty relied on here encompasses. Chapter three also considers the need to solve the problem of uncertainty in the context of the criminal offences established by these regulatory regimes in particular. Five specific issues will be raised. The first of these is the perception of immaturity surrounding environmental law.18 Secondly, the widespread dissatisfaction amongst the wider legal and business community will be examined. The UKELA report is considered.19 The third issue raised is the interaction between environmental law and science. This section considers the legal problems caused by scientific uncertainty in an environmental context, and the inability of the rules as currently interpreted to operate in a satisfactory fashion in light of such uncertainty. Regulations such as these also need to operate, fourthly, in a predictable fashion even in the face of administrative complexity. The law as it stands, being interpreted in a very broad fashion, is open to criticism for being insufficiently robust in the face of wide levels of administrative discretion.20 Finally, the regimes considered all impose criminal law sanctions for breach and the impact this has on the need to ensure formal certainty is examined. In chapter four there is an outline of the specific regimes being considered and a description of (the main) criminal offences that arise in these regimes is given in order to demonstrate the legal context within which the interpretive solution developed will operate. The pervasive uncertainty that currently exists in practice will be demonstrated in chapter five. This chapter considers domestic case law to demonstrate this uncertainty. It will be shown that the interpretation of key groups of environmental offences suffers from a lack of a coherent approach. Courts have relied 18 19 20

Fisher et al, ‘Maturity and Methodology’ (n 6). UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Law’ (n 17). E Fisher, Risk Regulation and Administrative Constitutionalism (Oxford, Hart Publishing, 2010).

Structure

7

on strained interpretation of the legislation to ensure maximum environmental protection. As a result, definitions within the regulations have become unstable, uncertain and highly discretionary. This has given rise to a mismatch between the terms of the regulations and the way they are applied. The elements that make up the criminal offences are being interpreted in such a way as to maximise environmental protection without sufficient consideration of the legitimacy of these rules. It will be seen that this reliance on aim-based interpretation, and the uncertainty that results, are mutually reinforcing. The immediate cause of the uncertainty, the purposive approach adopted by domestic courts, is also analysed here. Chapter six identifies the deeper causes of this pervasive uncertainty. It is acknowledged that uncertainty is inherent in some of the issues involved. Uncertainty cannot be totally resolved by a change in interpretive approach, but it is the only way to successfully militate against such uncertainty. The culture of regulation demonstrated by the ECJ, by the administrative guidance (both domestic and European), and by environmental law scholarship—a culture of effectivenessdriven interpretation—is the main cause of the domestic courts’ approach. This culture is examined in detail. There is a widespread assumption that this area of law should be analysed solely or primarily from the perspective of effectiveness. The problem of uncertainty is thus shown to be exacerbated by the prevailing approach to analysis of the rules, of administrative action, and of the case law. The identification of the cause of the uncertainty in chapter six allows the solution to be identified. The principles of interpretation that should make up this context-specific framework, a framework that can be both detailed and sufficiently flexible to operate cross-regime boundaries, are presented in chapter seven. The first of these is language. ‘Traditional’ jurisprudence is considered in order to demonstrate the common law approach to criminal law interpretation. In particular the restrictive approach to language is explored. The second feature of the framework is an identification of the ‘mischief ’ tackled by the legislation. There is a detailed examination of harm in an environmental context. The common law process used to ensure a clear identification of harm is explained by reference both to criminal law, and in the context of land use, by reference to nuisance. A clear identification of the harm tackled as drafted (not what the drafters aimed to do, but what they actually achieved) is required. The development of such a principle of environmental harm by the judiciary is critical to solving the problem of uncertainty as it allows for those elements of environmental law which cause difficulties for interpretation to be integrated into a primarily linguistic approach. The third element in the framework is recognition that rules ought to be seen as part of the wider regulatory context, and that where possible rules should be systematised. The fourth part of the framework is consideration of explanatory materials and in the context of regulation with a European provenance, preambles. Finally, where ambiguity remains, the aim may be taken into account as a last resort. When taken together and approached correctly, this framework should lead to coherent, principled, and most importantly, predictable interpretation of existing legislation.

8

Introduction

Chapter eight examines legal barriers to the implementation of this solution, and concludes with a discussion of how this innovative framework for interpretation would work in practice. This chapter examines the relationship between the existing environmental principles and the framework developed in chapter seven. It then considers in detail the jurisprudence of the ECJ in terms of demanding a teleological approach. This requires that courts of the Member States interpret community provisions in accordance with the aims of those provisions. It is argued that a more complete understanding of what this means would allow the national courts to rely on the common law principles of interpretation without a need for an explicit shift by the ECJ. It also demonstrates that the statutory guidance ought not to provide a barrier to change in approach. It then explores this solution in relation to the key terms identified in relation to the relevant offences within the waste, contaminated land, and habitats’ protection regimes. Tentative definitions or approaches to definition for these key terms are proposed. Chapter nine then draws conclusions from this, and returns to the issues raised in chapter two to explain the consequences of the approach advocated here for the place of environmental criminal law within theory and practice of the legal system as a whole. Detailed examination of the problem (uncertainty), cause (interpretation), and solution (a new framework for interpretation) will demonstrate clearly that environmental law can be robust in the face of the regulatory challenges posed by a scientifically and administratively complex area. It can only be successful, however, if the narrow teleological approach currently pursued is abandoned.

II. Motivation, Scope and Methodology A. Motivation There are four major motivating factors behind this book. Firstly, the challenge to take a more fully worked-out approach to interpreting environmental law, and to focus on the context within which decisions are being made, is raised by Fisher.21 Fisher’s approach, which considers questions of administrative constitutionalism, helps to solve the problem of focus on effectiveness, and integrates participation arguments within the context of environmental regulation. It does not, however, provide practical steps for judicial interpretation. Fisher has therefore highlighted a present and pressing need to bring a more principled approach to counteract the confusion that currently exists, but to date no scholarship has fully achieved this goal. This book aims to contribute to this academic goal by demonstrating that steps need to be taken to ensure coherent interpretation. 21

Fisher, ‘Unpacking the Toolbox’ (n 14).

Motivation, Scope and Methodology

9

Secondly, the current regulatory agenda prompts consideration of the state of environmental law. Even following the ‘red tape challenge’22 where there is a marked intention to move away from ‘all-encompassing environmental protection’ (perceived as over-regulation),23 there is still a tendency to assess the law by reference solely to its aims, and its efficiency in achieving these aims. The Smarter Environmental Regulation Review (SERR) is also based such an approach.24 In the Phase One report there is clear evidence of the desire to reform administrative guidance along such lines. Nevertheless, problems with interpretation are highlighted. One aim of the SERR is to ensure that ‘[l]egislation is accessible and understandable to those who need to comply with it and less effort is consumed in interpretation and resolving inconsistencies’.25 Although not seeking to reform the process of interpretation per se, the report does highlight that the current approach is causing practical problems. Unfortunately, the SERR affirms that effectiveness and efficiency will be the criteria by which any improvement is judged.26 The current policy agenda is therefore one which is partly about deregulation,27 and partly about increasing protection:28 a mix of policies which can only but add to the confusion that already blights environmental regulation. The conflicts and ambiguities that lead to policy compromises in legislation as drafted demand that courts take a structured approach to analysis and interpretation. Thirdly, this book is a response to the UKELA project on the state of environmental law in the UK published in 2012.29 This project calls for ‘[f]urther research … to monitor, map and predict the legal effects of environmental principles to see how they might influence on-going UK legal developments, particularly in the implementation and interpretation of regulatory obligations’.30 This book considers interpretation of regulatory obligations. Rather than considering the environmental principles outlined in the UKELA report—the precautionary principle; the polluter pays principle; the principle of integration and the principle of intergenerational equity31—it is looking at general principles of law. It examines whether a new interpretive approach based on such principles can 22

HM Government, ‘Red Tape Challenge’ (n 1). E Scotford and R Oliver, ‘The State of UK Environmental Legislation: Opportunities for Reform?’ (2013) 15 Environmental Law Review 225, 229. 24 DEFRA, ‘Smarter Environmental Regulation Review: Phase One Report’ (n 1). 25 ibid 13. 26 ibid 8. 27 On the one hand, consider the statements within DEFRA’s 2012 Business Plan to the effect that it wants to reduce the regulatory burden such that ‘disproportionate’ measures are removed. DEFRA, ‘Business Plan 2012–2015’ (DEFRA, London, 2012) 9, Table 3.1. 28 And on the other hand, DEFRA’s main aims are said to be concerned primarily with protection and maintenance of the environment—DEFRA, ‘Business Plan 2012–2015’ (ibid) where one of the main aims outlined is to: ‘[e]nhance and protect the natural environment … by reducing pollution and greenhouse gas emissions and preventing habitat loss and degradation’, ibid 2. 29 UKELA, King’s College London and Cardiff University ‘The State of UK Environmental Law’ (n 17). 30 ibid [4.25]. 31 ibid [4.24]. See also, UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Legislation in 2011: Is There a Case for Reform? Interim Report’ (London, UKELA, King’s College London and Cardiff University, 2012) 126. 23

10

Introduction

fulfil the role that the drafters of the UKELA report call on the environmental principles to achieve.32 This role is to increase coherence, transparency, and integration throughout the field of environmental law.33 The UKELA report is, however, both evidence of the prevalence of the drive for effectiveness—that environmental law ought to be reformed in order to make it more effective is an aim which is not even questioned, let alone justified34—and of the deep desire amongst environmental law scholars and practitioners to reform this area of law and to move away from piecemeal, ad hoc, random legislation.35 The launching point of the UKELA project means that it could only come to one conclusion: ‘[t]his research project has considered the effectiveness of UK environmental legislation assessed in terms of whether there are problems of lack of coherence, integration and transparency’.36 The starting point is how to improve effectiveness, through coherence. From the outset coherence and transparency are relevant merely as ‘supporters’ of effectiveness. This prioritisation of protection over certainty is one central tendency that this book seeks to tackle. Coherence, accessibility, integration, transparency and consistency are all important in and of themselves, not simply because they may or may not lead to meeting the goal of environmental protection. The suggested de-coupling of legitimacy and effectiveness is the starting point of this book. The need to take this step is impliedly called for by the UKELA report, whilst simultaneously being undermined by its very conclusions. More specifically, the UKELA project calls, in one of its final recommendations, for environmental statutes, ‘[to] contain general and overarching objectives relevant to a particular statute, which might guide the interpretation of terms within it, thus minimising coherence problems’.37 This statement is, in this author’s opinion, deeply problematic. The discovery of aims, and the articulation of these aims, is not a panacea for solving the problem of coherence. In order to tackle the problem of coherence, the cause of the incoherence must be discovered. Incoherence, fundamentally, is not caused by a lack of articulated aims. It is caused by a drive to meet these aims even where the legislation is not framed in such a way as to allow those aims to be met. Certainty will not be increased by the inclusion of clear aims within the legislation. Certainty will be increased by trying to improve the drafting of legislation in purely linguistic terms, and by continuing this clarity through to the 32 UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Law’ (n 17) [4.24]. 33 ibid 8–9. 34 ibid [2.2] and UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Legislation in 2011’ (n 31) 23. 35 UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Law’ (n 17) [2.5]; N de Sadeleer, Environmental Principles—From Political Slogans to Legal Rules (Oxford, Oxford University Press, 2002) 268. 36 UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Law’ (n 17) [1.1]. 37 ibid [4.26]. See also DEFRA, ‘Smarter Environmental Regulation Review’ (n 1) 13.

Motivation, Scope and Methodology

11

interpretation stage. This book aims to flag up the dangers of relying on aims alone. UKELA may seek coherence and certainty, but its argument shows that if a conflict arises between effectiveness and certainty, effectiveness, on its approach, would prevail. The existence of this tension in current reform proposals has motivated the exploration of an approach that explicitly seeks for certainty to be prioritised. Finally, the criminal law nature of these offences also demands predictable interpretation. With ‘traditional’ criminal law, ultimately, the aim is to prevent crime, but that is not the only factor that determines how such rules are interpreted.38 The sooner that this recognition is made in relation to environmental law, the sooner we can move from attempting to consider effectiveness at all times, to a position where the integrity and legitimacy of the legal rule itself are seen as equally important. The criminal law context alone means that the unpredictability of judicial decisions in this area demands change. The recent challenge to regulation on waste paper highlights the problems that uncertainty causes.39 This challenge argued that the waste regulations in relation to waste paper breached both common law, and European principles demanding due process in criminal law. Imprecision poses a threat to the compliance of a regulatory regime with these principles. The search for increased precision helps to ensure that due process is achieved. The approach proposed by this book can therefore change the overall doctrinal picture by focusing on interpretation. Common law principles for interpretation, as understood in an environmental context, should act as a framework to guide the judicial approach to these environmental offences. There are two key advantages to focusing on these principles in this way. Firstly, understanding the scope of legitimate legal regulation in the context of a sovereign parliament and high levels of administrative discretion is ensured by recognising the form, as well as the substance, of a particular regulatory provision. Secondly, and more practically, this tool for interpretation ought to render our understanding of the shape and structure of these offences more comprehensive, such that interpretation is more coherent and less focused on ‘as much as possible’. Our understanding of ‘good’ environmental regulation will change from simply being about ‘more environmental protection’ into a wider framework of what makes for good regulation.

B. Scope The particular offences considered are central examples of controls of the use of land that aim at protecting the environment. Four categories of offence are considered: (1) the offence of depositing waste on land without a licence (the Environmental Protection Act 1990 (EPA 1990), section 33 and the Environmental

38 39

J Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’ (1994) 53 CLJ 502, 511. R v Ideal Waste Paper Co Ltd [2011] EWCA Crim 3237, [2012] Env LR 19.

12

Introduction

Permitting (England and Wales) Regulations 2010, regulation 38); (2) the offence of non-compliance with a remediation notice served under Part IIA of EPA 1990 (EPA 1990, section 78M); (3) the offences of carrying out an activity on land designated under the nature conservation legislation (either as a site of special scientific interest (SSSI) or special protection area (SPA)/special area of conservation (SAC)), without the consent of the enforcing authority contained in the Wildlife and Countryside Act 1981 (WCA 1981), sections 28E(1) and 28P(1) and supplemented in the European context by the Conservation of Habitats and Species Regulations 2010, regulation 21,40 as amended; and (4) offences committed under the Environmental Damage (Prevention and Remediation) Regulations 200941 in relation to land and protected habitats. In relation to waste the extensive series of decisions on the definition of waste have given rise to highly complex and extremely difficult case law.42 The definitions of ‘deposit’ and ‘discard’ will be considered in this book. In relation to contaminated land, the definition of contamination, defined as ‘harm or significant risk of significant harm’ (a pre-requisite for serving a remediation notice) has proved highly complex, as have the provisions relating to liability. The meaning of ‘cause’ and ‘knowingly permit’ need examination, as does the interpretation of ‘occupier’. Finally, the meaning of ‘likely to damage’ and ‘adversely affect the integrity’ for the purposes of nature conservation has also proved difficult to interpret, as has the meaning of ‘operation’. The definition of ‘occupier’ can also be clarified by employing the framework outlined here. Again, these are pre-requisites to a management notice prohibiting a certain act, and therefore demand interpretation in the process of imposing criminal sanction. For the Environmental Liability Directive (ELD)43 it will be necessary to interpret the meaning of ‘damage’ and therefore of ‘significant adverse effect’, ‘adverse effect on the integrity of the site’ and ‘significant risk of adverse effects on human health’. It is clear that the problems encountered in relation to the regimes are not the same in all cases—there are subtle differences in the causes of the interpretation problems, not least the distinction between interpretation of pre-requisites for liability, and of interpretation of the terms of the offence itself. As a result, the solution to these problems cannot be an easy one. Nevertheless, in relation to each of these regimes, there are three issues that consistently prove problematic— the nature of the relevant damage done to the land, the relevant relationship with that land (ownership or occupation), and the process of risk assessment. These foundational issues are unclear thanks to the current effectiveness-driven approach. For each of these regimes, a new approach to interpretation can help. 40

SI 2010/490. SI 2009/153. 42 Castle Cement v Environment Agency [2001] EWHC Admin 224, [2001] Env LR 46, [19] and [45] per Stanley Burton J; R (OSS Group Ltd) v Environment Agency [2007] EWCA Civ 611, [2008] Env LR 8, [39], [40], [43], [55] and [67] per Carnwath LJ. 43 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage. 41

Motivation, Scope and Methodology

13

The very usefulness of a clear understanding of the relevance of harm as part of this framework is demonstrated by the different ways in which it operates in different contexts. These regimes can be considered typical of the ‘command and control’ approach to regulation. This book focuses on this type of regulation because it is the clearest example of law being used as a restriction on liberty in order to achieve a certain goal, and because this demonstrates the utility of an improved interpretation framework. It does not deny that the framework for interpretation may be more difficult to employ in relation to ‘new’ types of regulation—not least because very often the rules that are imposed take the form of state-encouraged voluntary action, or state-backed private agreements. Nevertheless, the advantage of developing a framework for interpretation, which is built on principles, is that the framework can be adjusted to fit the specific context concerned. Therefore the focus on command and control regulation and central cases of that is warranted here. The usefulness of a new approach in this particular context is not undermined by its potential inapplicability elsewhere. Furthermore, the categories of offences being examined stop a landowner from having their land in a certain state through the implementation of the criminal law, where that state, or doing a particular thing to the land, causes damage to the environment on that land. There is currently a difficulty in relation to these regimes in terms of defining or interpreting the factors that trigger liability. The first reason why these regimes have been selected therefore is that they are beset with uncertainty, but the consequences of being found liable under these regimes are potentially very serious through the imposition of a criminal sanction. The second reason relates to the relationship between a person found liable under these regimes and land, and the need to understand how environmental law operates in a property context. The focus on environmental law as a ‘unique’ area of law also requires some justification. There has been an extensive analysis of what it means to talk of environmental law as a unique discipline.44 It is not being suggested that the problem of a focus on effectiveness applies only to environmental law, but it is suggested that it is a prevalent problem in this context. In seeking to improve the certainty of our environmental law, it is necessary to ask, ‘what is environmental law?’ Finding an answer to this is no easy task. There is no definitive meaning to be given to the word environment,45 and law too is a slippery concept.46 And yet there is no doubt that there are certain aspects of legal study that are distinctively concerned with 44 S Coyle and K Morrow, The Philosophical Foundations of Environmental Law (Oxford, Hart Publishing, 2002) 212; R Moules, Environmental Judicial Review (Oxford, Hart Publishing, 2011) 3; Fisher et al, ‘Maturity and Methodology’ (n 6) 217; and AD Tarlock, ‘The Future of Environmental Rule of Law Litigation’ (2002) 19 Pace Environmental Law Review 575, 575. See also Scotford and Oliver, ‘The State of UK Environmental Legislation’ (n 23) 226. 45 S Wolf and N Stanley, Wolf and Stanley on Environmental Law (London, Cavendish, 2003) 3. 46 OW Pederson, ‘Modest Pragmatic Lessons for a Diverse and Incoherent Environmental Law’ (2013) 33 OJLS 103, 105.

14

Introduction

man’s relationship with the earth and its resources. The blurriness of the boundary between environmental law and the rules of tort, property and in an EU context, free trade, does not mean that we cannot focus on environmental law and the distinctive, if not unique, pressures that rest on those discussing, analysing, and interpreting such law.47 Indeed, this blurriness can be turned to our advantage if we are willing to recognise that there are different types of environmental law that operate in specific contexts. Environmental law is not, however, simply state regulation which effectively protects the environment. Not all such intervention is necessarily ‘legal’ intervention. The centrality given to the internal logic of legal reasoning and its principles in this book require an acceptance that intervention through law, and criminal law in particular, is more than ‘effective state action’. It is a particular kind of state action. Cane48 and Miller, who state that environmental law ‘[has] no clear signature’,49 argue that there is nothing special about environmental law per se. Fisher and others’ approach, by contrast, is that it is distinctive, even if it is not unique.50 This seems best to reflect the place of environmental law within our legal system. There is perhaps not one factor that distinguishes this body of law from other fields of law, but a peculiar combination of factors that go into a definition of a central case of environmental law. For example, environmental law tends to be of (relatively) modern conception; it is concerned with an area with a paucity of scientific understanding and data; it controls the use of natural resources etc. When combined together we can begin to build a definition of the central cases of environmental law whilst accepting the limits that face the academic when attempting to study, and delineate, the topic.51 Such a limitation of focus is justified by these particular characteristics which make environmental law susceptible to problems of coherence. There is a justification therefore in confining the discussion to environmental law. In defining such law, this book looks at the content, rather than the aim, of the relevant rules as the most appropriate means to distinguish environmental regulation. Aagaard has attempted such a ‘value-neutral’ definition of environmental law by focusing on what is distinctive about environmental regulation.52 He argues that environmental law is the legal regulation which is concerned with use-conflict over public resources.53 The focus on use poses a problem for him. It requires him to define ‘use’ so broadly that the definition essentially boils down 47

Fisher et al, ‘Maturity and Methodology’ (n 6) 225–26. P Cane, ‘Are Environmental Harms Special’ (2001) 13 Journal of Environmental Law 3, 11. 49 C Miller, ‘Environmental Law: The Weak Versus the Strong’ (1999) 1 Environmental Law Review 36. 50 E Fisher et al, Environmental Law, Text, Cases and Materials (Oxford, Oxford University Press, 2013). 51 Fisher et al, ‘Maturity and Methodology’ (n 6). 52 TS Aagaard, ‘Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy’ (2010) 95 Cornell Law Review 221, 259–63. 53 TS Aagaard, ‘Environmental Harms, Use Conflicts, and Neutral Baselines in Environmental Law’ (2011) 60 Duke Law Journal 1505, 1540. 48

Motivation, Scope and Methodology

15

to legal regulation which is concerned with public resources.54 It is better to take a more context-specific approach. Environmental law is the body of legal rules which has as its subject-matters land quality, air quality, protection of habitats and species conservation, water quality, and which in general manages the external environment through the use of legal regulation. This does not include those measures which although tangentially may have as their aim, no doubt amongst others, the protection of the environment, are not directed at this as such. Nor does it include regulation which is non-legal such as government policy statements where such statements are not binding. Given the breadth of this definition, it is useful, and indeed necessary, to discuss subsets of environmental law. This is a more open way of dealing with the problem of a ‘wide net’ than attempting to draw a very narrow definition which artificially excludes certain regulatory systems. This book focuses on the subset of environmental legal regulation that is concerned with land use, and indeed only with central cases of this subset considering only the criminal offences within these various regimes. Limiting the focus of the argument in this way does not mean that the argument is not applicable elsewhere, but is a recognition of the limitations of academic analysis of environmental law as a whole. The waste, contaminated land, and nature conservation provisions are central cases of environmental law regulation of land, and regulation of the use of land is a central case of environmental law, and even here, there is a sense that the approach to the interpretation of the statutory provisions that make up these regimes is unstable and is blindly groping for more and more coverage, without taking the step back required to stabilise interpretation of the criminal offences within these regimes. The focus on these three regimes is therefore justified in the context of the argument being considered. In addition, there is considerable overlap between these regimes and as a practical matter therefore homogeneity of approach to these regimes, all else being equal, is greatly to be desired.

C. Approach to Analysis Fisher and others have highlighted the importance of explicit methodological choices when carrying out environmental law scholarship.55 They argue that it is a failure to articulate methods that has caused environmental law scholarship to be unable to fully advance the subject.56 Thus, here, the doctrinal approach being taken is openly acknowledged. Although the relevance of doctrinal analysis to the ongoing debates within environmental law has been doubted,57 it is suggested that there is still a critical need to systematise and clarify the current regulatory

54 55 56 57

ibid. Fisher et al, ‘Maturity and Methodology’ (n 6) 244. ibid 226. Martin and Craig, ‘Accelerating the Evolution of Environmental Law’ (n 6).

16

Introduction

position and to analyse judicial decision-making from the perspective of seeking clarity, consistency and coherence. Doctrinal analysis is described by Posner as: Involv[ing] the careful reading and comparison of appellate opinions with a view to identifying ambiguities, exposing inconsistencies among cases and lines of cases, developing distinction, reconciling holdings, and otherwise exercising the characteristic skills of legal analysis.58

This is precisely the task that is being undertaken here. Examination of the case law does indeed reveal such ambiguities. This book uses a doctrinal approach to unearth a solution to these inconsistencies. The doctrinal approach has been the subject of heavy criticism. Posner has argued that: Purely verbal, purely lawyer’s scholarship, in which the categories of analysis are the same as, or very close to, those used by the judges or legislators whose work is being analysed—a scholarship moreover in which political consensus is assumed and the insights of other disciplines ignored does not fit comfortably into today’s scholarly Zeitgeist.59

Martin and Craig make a similar criticism, supporting the view that: It is clear that our scholarship will have to expand further, so that we can marry good doctrinal approaches and a new set of methods to provide comprehensive and sophisticated governance solutions to a world increasingly in need of them. This will involve moving to a systems framework, and deepening our thinking about instruments and institutions. This can only be done if we can draw upon the knowledge that exists in economics, social sciences and the biophysical natural sciences, but without submerging laws concern for social justice and the lawyers’ learned scepticism about simple solutions to complex problems.60

The primary criticism raised by both seems to be that doctrinal analysis, which assumes accepted underlying values, cannot advance the particular area of law being considered since that assumption of acceptance is not reflective of reality. There is no policy consensus, nor is there consensus over the legal values that should underpin environmental regulation. But that does not mean that there is no role for doctrinal analysis to play. Such analysis can highlight a problem which was previously overlooked, or provide a solution to a problem that has, when considered from other perspectives, proved insoluble. Thus, the doctrinal approach taken here, although perhaps uncomfortable within the framework of new governance approaches, or approaches which focus on the environmental ethics or policy as expressed through law, is nevertheless critical as a form of analysis.

58

RA Posner, ‘The Present Situation in Legal Scholarship’ (1981) 90 Yale Law Journal 1113, 1113. RA Posner, ‘The Decline of Law as an Autonomous Discipline’ (1987) 100 Harvard Law Review 761, 773. 60 Cited in Martin and Craig, ‘Accelerating the Evolution of Environmental Law’ (n 6) 14 and editorial in P Martin et al (eds), Environmental Governance and Sustainability (The IUCN Academy of Environmental Law) (Cheltenham, Edward Elgar Publishing, 2012) xxxi. 59

Motivation, Scope and Methodology

17

In summary therefore, this book takes a specific subset of environmental law— criminal offences established to support regimes which control the use of land— and examines the problem of uncertainty and incoherence in that specific context. It uses a doctrinal method to examine this problem. In doing so, it provides a solution that will meet the challenge for environmental regulation raised by the deep dissatisfaction with the rules in the wider legal and business community. It recognises more than others have done the vital importance of the criminal context and meets Fisher’s call to ensure that environmental law is robust in the face of scientific and administrative complexity. It is only by examining and altering the process of interpretation that we can tackle uncertainty in this area.

2 Environmental Criminal Law in Context The aims of this book are varied—to provide insight into the process of judicial reasoning in environmental law; to suggest an approach that would bring certainty into interpretation in this area; and to examine the relevance of the criminal law context to environmental law, albeit that the focus, as highlighted in the previous chapter, is on achieving certainty. In so doing, it touches on many areas of regulatory and private law life, and sits at the junction between different regimes, policies, and in many cases, philosophies as to what constitutes good regulation; as to how law should operate; and to where the environment and protection of the environment should sit within this. It makes the claim that certainty in environmental criminal law is paramount, and should be treated as a priority by the courts. This claim is modest in that there are few who would dispute it, but it is also significant since the implications of putting the goal of certainty as central in questions of interpretation are potentially significant in both theory and practice. In making this argument of course, the approach presented in this book risks undermining environmental protection, and regulatory effectiveness. As such it accepts that it is possible, and indeed useful, to look at questions of interpretation from many angles including through the instrumental lens of treating environmental criminal law as a means to an end. There is no attempt to underplay the important contribution that law and scholarship must make to questions of environmental protection. Nor however is there a devotion to effectiveness as the sole criterion of regulatory success. Before embarking upon this project, however, and delving into the detail of judicial interpretation of environmental criminal law in the UK, it is important to see this book as part of a wider whole. This chapter gives an introduction to the themes currently at play in the law itself, the values within it, and the scholarship surrounding that law, to explain the features of the legal system which impact upon interpretation of environmental criminal law. In considering the place of this book within those questions, six overlapping areas emerge as being the structures upon which the argument presented in this book is built. These are property rights; human rights; questions of risk and scientific uncertainty; the overlap between domestic and EU law; interpretation and judicial reasoning in the environmental and European context; and finally, criminal law.

Property and Environmental Law

19

The purpose of this chapter is to highlight some of the themes which emerge when considering environmental law, and with which a solution to legal uncertainty must contend. It is not enough that the solution produces certainty. It must also accommodate some of the theoretical and practical concerns that arise in this area, so as to produce a solution which is well rooted within the principles of the legal system as a whole. Thus, in considering the different areas in which environmental criminal law operates, this chapter raises those issues that must be kept in mind as the book progresses. In chapter nine, the impact of the solution proposed upon these key themes is evaluated.

I. Property and Environmental Law The property/environmental law frontier, although receiving much treatment in American scholarship,1 is still relatively under-explored in practical terms in the UK context.2 However, the relationship between property in land and environmental law is symbiotic. Scotford and Walsh highlight the impact that environmental law is having, both practically and theoretically, on the nature of property rights in the common law, by ‘democratising’ such rights through public participation in decisions about the uses and values of such rights.3 They demonstrate that the interaction between property and the environment is critical. They argue that: ‘[e]nvironmental law casts into sharp relief the need for property rights to be responsive to these features of land, particularly given the lasting and far-reaching implications of land-use decisions and the finite nature of land’.4 The stronger and more individualistic our conception of property, the less those rights themselves 1 DW Large, ‘This Land is Whose Land’ [1973] Wisconsin Law Review 1039; DB Hunter, ‘An Ecological Perspective on Property: A Call for Judicial Protection of the Public’s Interest in Environmentally Critical Resources’ (1988) 21 Harvard Environmental Law Review 311; JA Humbach, ‘Law and a New Land Ethic’ [1989] 74 Minnesota Law Review 339; ET Freyfogle, ‘Ethics, Community, and Private Land’ (1996) 23 Ecology Law Quarterly 631; TW Frazier, ‘Protecting Ecological Integrity within the Balancing Function of Property Law’ (1998) 28 Environmental Law 53; ET Freyfogle, ‘Owning the Land: Four Contemporary Narratives’ (1998) 13 Journal of Land Use and Environmental Law 279; and CA Arnold, ‘The Reconstruction of Property: Property as a Web of Interests’ (2002) 26 Harvard Environmental Law Review 281. 2 Although, see T Hayward and J O’Neill, Justice, Property and the Environment (Aldershot, Ashgate Publishing, 1997); J Lowry and R Edmunds, Environmental Protection and the Common Law (Oxford, Hart Publishing, 2000); S Coyle and K Morrow, The Philosophical Foundations of Environmental Law (Oxford, Hart Publishing, 2004); WNR Lucy and C Mitchell, ‘Replacing Private Property: The Case for Stewardship’ (1996) 55 CLJ 566; and CP Rodgers, ‘Nature’s Place? Property Rights, Property Rules and Environmental Stewardship’ (2009) 68 CLJ 550. For a common law discussion in a Singaporean context, see LH Lye, ‘Land Law and the Environment: Re-Examining the Concept of Ownership and Forging New Rights and Obligations in a Changed World’ (2010) 22 Singapore Academy of Law Journal 189. 3 E Scotford and R Walsh, ‘The Symbiosis of Property and English Environmental Law—Property Rights in a Public Law Context’ (2013) 76 MLR 1010, abstract. 4 ibid. See also J Penner, ‘Nuisance, The Morality of Neighbourliness, and Environmental Protection’ in J Lowry and R Edmunds, Environmental Protection and the Common Law (Oxford, Hart Publishing, 2000) 48–49.

20

Environmental Criminal Law in Context

can be seen to be subject to external control,5 or indeed to internal obligations of stewardship.6 The relationship between property and the environment is therefore critical not just to the practical successes of environmental regulation, but also to our theoretical understanding as to how these two worlds can fit together.7 This impacts, too, upon doctrinal questions of interpretation. The mechanisms, both theoretical and practical, by which property rights and environmental protection interact must therefore be understood as part of environmental law as a whole and environmental criminal law in particular. We know that thus far there is no consistent mutual accommodation.8 The unbendingness of property to the environment is highlighted in much of the explorative jurisprudence in relation to the potential of nuisance to constitute a generalised tort covering pollution.9 Similarly, the lack of a general restriction on property uses in relation to habitats’ protection shows that there is no sense in which our understanding of rights in land has developed to the point where the rights encompass wide-ranging duties to the environment.10 Nevertheless, there is at least now emerging a realisation that the environmental/ property frontier does not involve a one-way process.11 Rather, Scotford and Walsh and others12 recognise that property law influences the way we understand environmental regulation—as they highlight, ‘the enforcement of property rights is affected by environmental regulation, but that impact in turn can constrain the scope of environmental regulation’.13 Rather than being diametrically opposed systems, the position that is beginning to emerge is indeed one of mutual

5 FS Philbrick, ‘Changing Conceptions of Property in Law’ (1938) 86 University of Pennsylvania Law Review 691; Hunter, ‘An Ecological Perspective on Property’ (n 1) 15; Frazier, ‘Protecting Ecological Integrity’ (n 1); JP Byrne, ‘Green Property’ (1990) 7 Constitutional Commentary 239; Lucy and Mitchell, ‘Replacing Private Property’ (n 2); and Coyle and Morrow, Philosophical Foundations (n 2). 6 Lucy and Mitchell, ‘Replacing Private Property’ (n 2) and VJ Yannacone Jr, ‘Property and Stewardship—Private Property Plus Public Interest Equal Social Property’ (1978) 23 South Dakota Law Review 73. 7 Scotford and Walsh, ‘The Symbiosis of Property and English Environmental Law’ (n 3) 1013–16. 8 ibid 1045. 9 J Steele, ‘Private Law and the Environment: Nuisance in Context’ (1995) 15 Legal Studies 236; D Howarth, ‘“Poisonous, Noxious or Polluting” Contrasting Approaches to Environmental Regulation’ (1993) 56 MLR 171; AI Ogus and GM Richardson, ‘Economics and the Environment: A Study of Private Nuisance’ (1977) 36 CLJ 284; Penner, ‘The Morality of Neighbourliness’ (n 4); RG Lee, ‘From the Individual to the Environmental: Tort in Turbulence’ in J Lowry and R Edmunds, Environmental Protection and the Common Law (Oxford, Hart Publishing, 2000); and K Stanton and C Willmore, ‘Tort and Environmental Pluralism’ in J Lowry and R Edmunds, Environmental Protection and the Common Law (Oxford, Hart Publishing, 2000). 10 Habitats’ protection covers only designated land. There is no general obligation to maintain a good environmental status on land not so designated. In addition, there is no complete prohibition on destruction of a relevant habitat if overriding reasons of public interest demand that such destruction take place. Such limitations on the scope of the protection are established within the Habitats and Wild Birds Directives, Arts 3–6. The operation of these regimes is discussed in ch 4 below. 11 Scotford and Walsh, ‘The Symbiosis of Property and English Environmental Law’ (n 3) 1011. 12 Frazier, ‘Ecological Integrity’ (n 1); and Coyle and Morrow, Foundations of Environmental Law (n 2). 13 Scotford and Walsh, ‘The Symbiosis of Property and English Environmental Law’ (n 3) 1029.

Property and Environmental Law

21

accommodation and respect, albeit that property law definitely remains the bigger and more powerful brother. This is highlighted by the comments in Cascina Tre Pini Ss v Ministero dell’Ambiente e della Tutela del Territorio e del Mare:14 As long as the quality of the site in question meets the requirements for its classification, such restrictions of the right to property are, as a rule, justified by the objective of protecting the environment laid down in that directive … However, where those qualities definitively disappear, continuing to restrict the use of that site might be an infringement of the right to property.15

A similar understanding of the accommodation required between property and environmental protection was seen in North Uist Fisheries v Secretary of State for Scotland16 where the court was cognoscente of the impact on liberty that restrictions on property use produce.17 The two systems, in short, interact with each other, producing balance. The existing legal scholarship acknowledges the interdependency between property rights and the environment, and this picture is beginning to emerge too in the case law in this area. However, the unevenness of this development reveals the risk of allowing a gradual, unconscious, accommodation to emerge. The accommodation that is reached may be inconsistent, or the balance struck may be in the wrong place, or indeed struck in opposing places in different areas of the law. What a gradual recognition of the mutuality of the impacts means is that instead of considering environmental regulation as being a system imposed upon property rights, limiting them and constraining uses of land in particular, we should begin to understand environmental law as filtering into property rights and affecting those rights from many different angles. We must then analyse existing rules against this background, and not in ignorance of it. This book attempts to do so by integrating understandings of property into the overall process of interpretation of criminal offences in relation to land and the environment. Many of these criminal offences are committed against the backdrop of property rights, and this fact alone should influence the approach to liability and the interpretation of the harms within the offences themselves. This is not to say that we ‘let people off ’ their crimes if they are committed on their own land—far from it—but rather that ‘the landedness’ of the offence is relevant to questions of certainty, and overall coherence, and that this should be recognised not just in the design of regulation, but at other stages of the regulatory process. The accommodation which is naturally emerging does not require our allegiance. Rather we can actively intervene in the formation of the compromise to ensure that it is a compromise which takes place along coherent lines. 14 Case C-301/12 Cascina Tre Pini Ss v Ministero dell’Ambiente e della Tutela del Territorio e del Mare (not yet published). 15 ibid [29]. 16 North Uist Fisheries v Secretary of State for Scotland 1992 SC 33, 1992 SLT 333. 17 ibid 39.

22

Environmental Criminal Law in Context

Stating that awareness of the relationship between property and the environment, and sensitivity to the balance emerging is required, not just in theoretical terms, but also when carrying out doctrinal analysis of the relevant rules, belies the difficulty in carrying out such a task however. It is not possible in general terms to consider ‘property’ and ‘the environment’. The task is too broad, and too complex for any attempt to cover the whole field to be of practical use. Instead, we should consider subsets of environmental law. When assessing environmental law it is useful to zoom in, to examine particular contexts and types of regulation, to see if there are ways to make advances in that particular area, even if those methods would be less successful in other contexts.18 As shown in the previous chapter, the context of this book is offences relating to land. By considering this area of environmental law in particular, the links between property and the environment become ever clearer. Crucially, land as a property has certain features which make consideration of regulation of land use particularly sensitive to questions of liberty. The uniqueness of land as a commodity is well-documented.19 This uniqueness means we should treat land differently in drafting legislation and in deciding what to protect in each judicial or regulatory decision. What does the symbiosis between environmental protection and property mean for the specific question addressed by this book—how can we ensure certainty of interpretation in environmental offences relating to land? It means, firstly, that when considering environmental law, it is impossible to understand the full implications of environmental regulation and questions of interpretation of relevant criminal offences without considering too the impact of property rights within the overall system of control. Secondly, the nature of the accommodation which emerges between the environment and property depends upon the mutual influence the one has on the other, but also upon the willingness of those considering environmental law to explore the theoretical and practical nature of this compromise, and to suggest amendments to that compromise where the balance has been struck in the wrong place. It therefore mandates inquiry into questions of the relationship between property rights and controls of those rights in both practical and theoretical terms. Thirdly, it means that when attempting to explore these issues there is merit (or possibly a need) in ‘zooming in’ to show the compromise at play in a particular area, and under a particular subset of rules. This does not mean that we ought to ignore the wider context, but simply that detailed analysis of the doctrinal compromise is required, in addition to more theoretical approaches to these key issues. There is however an additional dimension to the property/environmental law frontier, and this lies not in the interaction between the property rights of A, 18

That this book is taking such a contextual approach is discussed in ch 1. Scotford and Walsh, ‘The Symbiosis of Property and English Environmental Law’ (n 3) 1013; EA Peñalver, ‘Land Virtues’ (2009) 94 Cornell Law Review 821, 832; Penner, ‘The Morality of Neighbourliness’ (n 4) 49. 19

Property and Environmental Law

23

and the regulations that are imposed upon A limiting his use of those rights, but also the relationship between the property rights belonging to A and those belonging to B, and the implications that this may have for the protection of the environment.20 The importance of this second dimension emerges in part because environmental harm takes place across, and in ignorance of, boundaries. Thus a problem may implicate both A and B regardless of the niceties of the interaction between their rights as a matter of land law. As Large argues, ‘we now realize that whatever the state of its title, one parcel of land is inextricably intertwined with other parcels, and that causes and effects flow across artificially imposed divisions in the land without regard for legal boundaries’.21 Thus environmental protection has implications not only for A’s rights in relation to the land in which he has those rights, but also for his neighbours. In addition, the interaction between A and B also means that A’s actions in relation to the environment may be a breach of B’s property rights—classically remedied with a nuisance action.22 This interconnectedness can be both a help and a hindrance when considering protection of the environment. It can help in that environmentally harmful actions may be both a breach of a regulation, and also a private law tort against a neighbouring landowner. Thus both the state, and a private individual, are incentivised to seek redress for any harm caused, increasing the willingness to tackle the problem, and the resources available to do so.23 It can hinder environmental protection, however, in that the nature of private law disputes tends to play up the anthropocentric elements of a dispute, minimising the scope for consideration of ecological and other considerations. The potentially myopic nature of private law disputes can result in the side-lining of environmental issues. Thus in relation to the environment and property law, the analysis presented in this book must be sensitive to two central issues. Firstly, it must be sensitive to the mutual accommodation which is emerging in relation to property rights and environmental protection and must therefore pay particular attention to the unique features of land as the subject of property rights when focusing on the criminal law relating to land use. Secondly, it must also explore the relationship 20 Steele, ‘Private Law and the Environment’ (n 9); Howarth, ‘Poisonous, Noxious or Polluting’ (n 9); Ogus and Richardson, ‘Economics and the Environment’ (n 9); Penner, ‘The Morality of Neighbourliness’ (n 4); Lee, ‘Tort in Turbulence’ (n 9); and Stanton and Willmore, ‘Tort and Environmental Pluralism’ (n 9). 21 Large, ‘This Land is Whose Land’ (n 1) 1045. 22 W Singer, Entitlement: The Paradoxes of Property (New Haven, Yale University Press, 2000) at 203; Penner, ‘The Morality of Neighbourliness’ (n 4) 31; M Davies, Property: Meanings, Histories, Theories (Abingdon, Routledge-Cavendish, 2007) 11; Large, ‘This Land is Whose Land’ (n 1) and Scotford and Walsh, ‘The Symbiosis of Property and English Environmental Law’ (n 3) 1015–16. 23 For the effect of mobilisation of citizenry in general in the EU, see RA Cichowski, The European Court and Civil Society: Litigation, Mobilization and Governance (Cambridge, Cambridge University Press, 2007). Chapter 4 considers environmental protection. See also Stanton and Willmore, ‘Tort and Environmental Pluralism’ (n 9) 93; and D McGillivray and J Wightman, ‘Private Rights, Public Interests and the Environment’ in T Hayward and J O’Neill, Justice, Property and the Environment (Brookfield, Ashgate,1997).

24

Environmental Criminal Law in Context

between competing property rights as pertains to environmental protection. If possible, it is preferable for property rights and environmental law to work together and for this to occur, the two issues outlined here need to be kept in mind at all times.

II. Human Rights and the Environment The same can be said for human rights and the environment in that elements of human rights law necessarily impact upon the appropriate scope and approach of environmental protection and criminal law. Understanding this background in general terms is necessary to understand the tensions that rest underneath the application of legislative rules, but again, the picture is complex and somewhat unsettled. In the case of human rights and the environment, there are two central issues. The first is whether there is a human right to environmental protection, an issue that is by no means settled. The second is the relationship between the human rights expressed in Articles 6, 7, 8, 10 and 11 of the European Convention on Human Rights (ECHR),24 property rights (as protected in, for examples, Article 1, Protocol 1 and to an extent in Article 8), and regulations which seek to limit those liberties for the protection of the environment. To what extent can environmental regulation impinge upon human rights? To what extent should it? And finally, to what extent is this a question of regulation versus human rights, as opposed to human right versus human right? Shelton encapsulates the conflicts here, arguing that: A fundamental question is whether human rights and environmental protection are premised upon fundamentally different social values, such that efforts to implement both simultaneously will produce more conflict than improvement, or, on the other hand, whether human rights and environmental protection are complementary, each furthering the aims of the other.25 24 Article 6—A Right to a Fair Trial; Article 7—No Punishment without Law; Article 8—Right to Respect for Private and Family Life; Article 10—Freedom of Expression; and Article 11—Freedom of Association. 25 D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28 Stanford Journal of International Law 103, 104; R Desgagné, ‘Integrating Environmental Values into the European Convention on Human Rights’ (1995) 89 The American Journal of International Law 263; D Shelton, ‘Human Rights and the Environment: What Specific Environmental Rights Have Been Recognized?’ (2006) 35 Denver Journal of International Law and Policy 129; D Shelton, ‘Human Rights, Health and Environmental Protection: Linkages in Law and Practice’ (2007) 1 Human Rights and International Legal Discourse 9; OW Pederson, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21 The Georgetown International Environmental Law Review 83; S Kravchenko and JE Bonnie, ‘Interpretation of Human Rights for the Protection of the Environment in the European Court of Human Rights’ (2012) 25 Pacific McGeorge Global Business and Development Law Journal 245; and N de Sadeleer, EU Environmental Law and the Internal Market (Oxford, Oxford University Press, 2014) ch 2.

Human Rights and the Environment

25

Indeed, we can see this difficulty if we consider the complexities within Article 8, the right to a private life, for example. It has been concluded by the European Court of Human Rights (ECtHR) that this will include a right to protection from serious pollution which causes illness to those living at a property or which seriously undermines the ability to live there.26 On the other hand, Article 8 also contains within it a protection to be given to tenure of a property, making it more difficult for a public sector landlord, for example, to obtain possession of that property with a view to ensuring that it provides a safe and healthy environment.27 Of course these tensions can be balanced. But the lines upon which such a balance is made are unclear, and this produces tensions for those attempting to strike the balance. This means that when considering issues such as certainty in environmental law, at the background of that discussion issues such as proportionality, legitimacy of aim, and due process, will also lie. A further issue lies in the complexity of the relationship between instruments that protect human rights and national law. Firstly, this relationship will determine whether an individual can rely on a human rights argument to bolster an environmental protection argument. Secondly, it will determine whether an individual can plead human rights as a defence. This is not the place to address these issues in detail, but they impact upon the judicial approach to interpretation and so it is necessary to examine the role of human rights in this area in outline. UK national law does not enshrine a direct human right to the environment. The most it achieves in terms of environmental rights comes from the access to information and justice guaranteed by the Aarhus Convention.28 However, it is a signatory to the ECHR, and, through the Human Rights Act 1998 (HRA 1998), Convention rights are directly justiciable in a national court.29 The jurisprudence of the ECtHR is not however directly binding upon a national court.30 Rather, the national court is bound to attempt to construe legislation ‘as far as possible’ in such a way as to be human rights compatible.31 The result of this is that whatever approach the courts take to questions of interpretation, notwithstanding the absence of a direct human right to a clean environment, they will take account of the Strasbourg Court’s own understanding as to how environmental protection interacts with property rights, issues of fair

26 Arrondelle v United Kingdom (1982) 26 DR 5; Baggs v United Kingdom (1985) 44 DR 13; Lopez Ostra v Spain Series A no 303-C (1995) 20 EHRR 277; Guerra v Italy ECHR 1998-I 210; Takin v Turkey ECHR 2004-X 179; Oneryildiz v Turkey ECHR 2004-XII 79; Budayeva v Russia App nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 (ECtHR, 29 September 2008). See R Moules, Environmental Judicial Review (Oxford, Hart Publishing, 2011) at ch 15. 27 Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104; Hounslow London BC v Powell [2011] UKSC 8, [2011] 2 AC 186. 28 United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, adopted 1998 and Directive 2003/35 on the environment [2003] OJ L156/17. 29 HRA 1998, s 7. 30 HRA 1998, s 2(1)(a). 31 HRA 1998, s 3(1).

26

Environmental Criminal Law in Context

trial, and access to justice, and criminal liability based on risk-focused legislation. The approach advocated here therefore aims to provide sufficient flexibility to make room for such a developing jurisprudence, without being paralysed by the uncertainty of the existing position. In addition, the European Court of Justice (ECJ), in its complex jurisprudence concerning the relationship between national law, European law, and the bindingness of the ECHR on the EU itself (confirmed by the likely pending accession of the EU itself to the Convention32 and by the principle contained in Article 6(3) Treaty on European Union (TEU)),33 means that what may not be a breach of national law under the HRA 1998, may instead be a breach of EU law.34 The supremacy of EU law means that the Court is unable to act in breach of EU law.35 This somewhat indeterminate legal status therefore produces legal complexities which undermine the degree to which it can be said that there is a human right to the environment which is integrated into national law. Nevertheless, the tenuous existence of such a right, if it can be concluded that it both exists and is in general terms binding within national law, means that at the very least the courts will keep the human right in mind as part of their general assessment of the law. The interpretive obligation in section 3 of the HRA 1998 means that in the process of interpretation in particular, the court will be minded to ensure that any outcome can be understood within a framework which includes human rights. This, again, will impact also upon the relationship between environmental and property law, contributing to the mutuality of influence examined in the previous section. It is not only through the existence of a human right to environmental protection that human rights will influence interpretation of environmental regulation. It is also possible that individuals will seek to limit their environmental liability by relying on human rights and the human right to property in particular. The question will then become as much about competing human rights as it is about human rights versus regulation, and the difficulty in balancing human rights in

32 For a status report on the negotiations for such accession, see http://hub.coe.int/what-we-do/ human-rights/eu-accession-to-the-convention. See also Charter of Fundamental Rights of the European Union, accessible at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:038 9:0403:en:PDF (30 March 2010), especially Art 37, which although drafted as a policy principle rather than an individual right, bolsters the argument that environmental protection can be encompassed within the broader framework of human rights. See de Sadeleer, EU Environmental Law (n 25) ch 2. 33 The principle is that fundamental rights which form part of the EU legal order are to be given the status of general principles within the Union. See de Sadeleer, EU Environmental Law (n 25) 112. 34 Opinion 2/94 [1996] ECR I-1759, [34]; Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-5659, [73]; and Cases C-402/05 and C-415/05 Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6381, [284]. 35 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585; Case C-106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 00629; Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-04135; R (Factortame Ltd) v Secretary of State for Transport (No 2) [1992] 1 AC 603.

Questions of Risk

27

this way will produce uncertainty. It raises questions of discretion and the legitimacy of the exercise of such discretion in relation to highly politicised issues. Finally, in the context of the focus of this book, ie criminal law, there is an additional layer of complexity in the human right to due process and a fair trial.36 This requires, as is discussed in detail in chapter three, that legislation be certain, and that liability under the criminal law be predictable and ascertainable in advance. Any failure to ensure this on the part of the state not only compromises that state’s compliance with the rule of law, but it is also violates the human rights of its citizens. This is clearly unsatisfactory, but when considering environmental protection in particular, the lack of scientific knowledge at our disposal,37 means that it is difficult to draft and interpret legislation in such a way as to be responsive to such issues, whilst also complying with the need to ensure a fair trial. As with the other issues raised in relation to human rights and the environment, analysis of the judicial approach must also take account of the rights of the accused when dealing with a criminal trial in particular.

III. Questions of Risk Furthermore, environmental law is often a matter of managing risk and this element of environmental law has impact upon interpretation, especially in relation to criminal law. In many situations environmental law intervenes, or attempts to intervene, prior to the emergence of harm. More traditionally, criminal law would intervene post-harm, with the criminal sanction operating to some extent as a deterrent and warning against causing harm, and punishment being a response to that harm.38 When these two goals are combined, however, environmental law often attempts to deter against and punish the creation of a risk of harm, rather than harm itself, and this interacts uneasily with traditional approaches to interpretation in criminal law.39 This is not, however, the only complication in terms of 36 Art 6 ECHR. Such a guarantee of access to justice and no prohibition without law is also guaranteed by the EU legal order in ch 6 of the EU Charter of Fundamental Rights. 37 P Ky, ‘Qualifications, Weight of Opinion, Peer Review and Methodology: A Framework for Understanding the Evaluation of Science in Merits Review’ (2012) 24 Journal of Environmental Law 207; J McEldowney and S McEldowney, ‘Science and Environmental Law: Collaboration Across the Double Helix’ (2011) 13 Environmental Law Review 169; T O’Riordan and A Jordan, ‘The Precautionary Principle, Science, Politics and Ethics’ CSERGE Working Paper PA 95-02, accessible at www.cserge.ac.uk/ sites/default/files/pa_1995_02.pdf; WE Wagner, ‘The “Bad Science” Fiction: Reclaiming the Debate over the Role of Science in Public Health and Environmental Regulation’ (2003) 66 Law and Contemporary Problems 63; J Corkin, ‘Science, Legitimacy and the Law: Regulating Risk Regulation Judiciously in the European Community’ (2008) 33 EL Rev 359. 38 SF Mandiberg and M Faure, ‘A Graduated Punishment Approach to Environmental Crimes: Beyond Vindication of Administrative Authority in the United States and Europe’ (2009) 34 Columbia Journal of Environmental Law 447, 448. 39 See Dyke v Elliott (1871–73) LR 4 PC 184 and pp 141–44 in this book. The ECJ too is concerned to ensure that interpretation does not extend the scope of criminal liability. See Case

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judicial role engendered by the risk regulation involved in environmental protection. Just as environmental risk regulation and ‘legal disputes over standard setting and risk appraisal are essentially disputes about what is, and what should be, the role and nature of “good” public administration’,40 they are also disputes about the appropriate judicial approach to and role in adjudicating on such questions. The risk-based elements of environmental law control also produce difficulties when considered from the perspective of scientific uncertainty. This is where the precautionary principle has served environmental lawyers well.41 The ability to rely on this principle when an individual risks losing their liberty through the imposition of a criminal sanction is, however, less immediately justifiable. Again, in trying to build the fault lines within which discussion of interpretation of environmental criminal law can take place, there must be a clear understanding of the tensions between criminal law principles and regulating risk. Equally important is the practicality of regulation. A court, whatever its expertise, is not an expert in environmental science, and this simple fact is one which environmental law struggles to account for in practical terms. Thus, using the judiciary as an element in risk regulation is difficult in itself. The process used with regards to interpretation will influence the legitimacy of such risk regulation. There is, as might by now be anticipated, an additional layer of difficulty which comes in the form of disagreements as to the appropriate ways in which risk regulation should be understood as a process. Such questions impact upon the appropriate approach to interpretation. As Fisher highlights: The simplicity of the ‘risk regulation’ moniker … belies the fact that there are differences of opinion over what exactly is entailed in regulating risk. For some, the term is referring to a specific type of regulatory method, while for others it is a general term that refers to any governance activity concerned with regulating ‘threats’.42

C-168/95 Criminal proceedings against Luciano Arcaro [1996] ECR I-4705, [42] and Case C-80/86 Criminal proceedings against Kolpinghuis Nijmegen BV [1987] ECR 3969, [13]. See also R Macrory, V Madner and S Mayr, ‘Consistent Interpretation of EU Environmental Law’ in JH Hans, R Macrory and A-M Moreno Molina, National Courts and EU Environmental Law (Groningen, Europa Law Publishing, 2013) and D Keyaerts, ‘The Impact of Better Regulation in the Case Law of the European Court of Justice’ [2012] European Journal Of Risk Regulation 241. 40

E Fisher, Risk: Regulation and Administrative Constitutionalism (Oxford, Hart Publishing, 2010) 3. For the precautionary principle see N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford, Oxford University Press, 2002); E Fisher, J Jones and R von Schomberg (eds), Implementing the Precautionary Principle: Perspectives and Prospects (Cheltenham, Edward Elgar Publishing, 2006); A Jordan and T O’Riordan, ‘The Precautionary Principle in UK Environmental Law and Policy’ CSERGE Working Paper GEC 94-11, accessible at www.cserge.ac.uk/sites/default/files/ gec_1994_11.pdf; E Fisher, ‘Precaution, Precaution Everywhere: Developing a “Common Understanding” of the Precautionary Principle in the European Community’ (2002) 9 Maastricht Journal of European and Comparative Law 21; JL da Cruz Vilaça, ‘The Precautionary Principle in EC Law’ (2004) 10 European Public Law 369; MBA Van Asselt and E Vos, ‘The Precautionary Principle and the Uncertainty Paradox’ (2006) 9 Journal of Risk Research 313; and R von Schomberg, ‘The Precautionary Principle: Its Use Within Hard and Soft Law’ [2012] European Journal of Risk Regulation 147. 42 E Fisher, ‘Framing Risk Regulation: A Critical Reflection’ [2013] European Journal of Risk Regulation 125, 126. 41

Questions of Risk

29

The assistance that existing literature provides in relation specifically to environmental law therefore is limited by the lack of consensus with regards to what risk regulation does and should involve. This again is no criticism of those writing or researching such issues, but it is a recognition that in this area there is no solid ground, only shifting sands and compromises between core and contested values. These shifting sands must, as far as possible, be integrated into an approach to interpretation. Any new approach to interpretation by the courts will, however, in effect, also be a new aspect to the process of risk management. This is intrinsically interdisciplinary, making any such understanding one beyond the scholarly approach of a single writer. Each voice must contribute their own skills and knowledge, and dialogue should combine these voices. By integrating questions of harmfulness into the process of interpretation, the courts themselves will also become open participants in the risk assessment and management decision-making process. Furthermore, when a court makes a decision, inevitably it alters how we understand how risk regulation operates. This challenges the orthodoxy of understanding in risk regulation (division between risk assessment and risk management) as the court will engage with both aspects of this framework. The court will make findings of fact about scientific validity, thus engaging in the risk assessment process, and will use value judgments about the merits of tackling any particular risk in the process of interpreting the terms used by the legislation to attempt to capture that risk. It is important, therefore, when considering environmental law, and particularly, when considering the role of the judiciary, with their twin-task of legal interpretation and fact assessment, that we recognise that the regulation of risk is as much a matter of values as it is of science. Scientific uncertainty gives a greater, not a lesser, role to those values. In order to provide some predictability and certainty, we need to have a conceptual framework for the approach of the judiciary that captures these issues. This is highlighted clearly by Fisher: The risk assessment/risk management framework has … discouraged the development of real legal expertise in this area. The framework maps little of the internal legal content of risk regulation regimes and the problem is that the internal legal context is fundamental to how risk regulation operates in any legal culture—the statutes do count, the case law does matter, a similar term can be interpreted in different ways in different cultures, practices of litigation are significant—but the risk assessment /risk management framework provides no conceptual aides to making sense of this.43

A lack of such conceptual aides makes analysis of the appropriate judicial role all the more complex. Risk governance is also closely related to intergenerational concerns: If we … follow a short-sighted approach which only aims at the expected positive effects without taking into account actual and potential adverse effects that might occur in the 43

ibid 131.

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Environmental Criminal Law in Context

future, we would act irresponsibly towards the generations of our children and grandchildren.44

This impacts upon the assessment of harmfulness, as discussed in relation to traditional criminal law concerns above, but also on the values that bear upon interpretation. The extent to which the judiciary can and should take account of the needs of future generations, especially where such needs are uncertain, is another factor that must be considered when thinking about the role that courts play in environmental regulation. As such, when considering interpretation, the elements that make regulating risk problematic—scientific uncertainty, unidentifiable harms and risks, the lack of conceptual clarity as to the risk regulation process, and intergenerational concerns—all play into the extent to which the judiciary are able to manipulate the legislative terms employed in a particular provision to balance the various values at play in their decision.

IV. Jurisdictional Overlap—National Law and EU Law Thus far the question has often been how to balance competing values associated with different perspectives within a single legal system. Environmental law, however, also sits on the boundaries between different legal systems, adding not only the legal complications arising from questions of hierarchy and bindingness of norms, but also brings with it different approaches to regulation. It is made up of rules from various jurisdictional layers (one of which has already been discussed in relation to human rights),45 and the interpretation and application of those rules is thus dependent upon the regulatory culture present not just in the UK, but also in the EU.46 It is also obvious to state that where possible it is preferable for the application of the rules and their communication to those subject to the rules to be homogenised, notwithstanding their diverse genesis, but of course very often this will not be possible. The approach to interpretation must therefore seek to take account not only of direct legal conflict of norms, but also of conflict in interpretative and other values. This is particularly relevant for EU law which, through the doctrine of supremacy, is superimposed onto national law. As explained in Simmenthal II,47 ‘1) Union law must be applied in its entirety and 2) any provision of national law which

44 J Leinen, ‘Risk Governance and the Precautionary Principle: Recent Cases in the Environment, Public Health and Food Safety Committee’ (2012) 2 European Journal of Risk Regulation 169. 45 See pp 24–27 in this book. 46 For a general overview of EU environmental law, see L Krämer, EU Environmental Law, 7th edn (London, Thompson Reuters, 2012); and JH Jans and HHB Vedder, European Environmental Law: After Lisbon, 4th edn (Groningen, Europa Law Publishing, 2012). 47 Case C-106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 00629.

Jurisdictional Overlap—National Law and EU Law

31

is in conflict with it must be set aside’.48 There are many parallel obligations arising through national law and European law that cover overlapping if not identical ground.49 These obligations are treated differently by the courts, and the methods and culture of interpretation vary.50 In a system of non-total legal integration this is inevitable,51 and perhaps to be desired as a way of maintaining national legal identity whilst allowing for harmonisation in accordance with the aims of the European project, but it means that from a legal analytical perspective it is not possible to consider doctrinal analysis of the rules without engaging with the legitimacy-based arguments that explain and justify divergent legal culture. In addition, complications of jurisdictional overlap mean that in some situations the interpretation of a rule will be beyond the control of the national courts. This is not, however, simply a one-way process. For example, national courts’ attitude to the preliminary reference procedure in particular will determine the extent to which they seek guidance from the ECJ.52 Thus questions of interpretation are also tangled with the process of mutual deference and cooperation that in part defines the relationship between the national courts and the European Courts.53 From another perspective, they are tangled also with the ‘judicial activism’ that characterises some of the more integrationist decisions of the ECJ.54 The overriding ethos that governs the relationship between the various courts and the politics at the root of that will impact too upon the levels of

48 Jans and Vedder, European Environmental Law (n 46) 211. Local authorities are also bound by this obligation to enforce environmental law in preference to national law, see Case C-103/88 Fratelli Costanzo SpA v Comune di Milano [1989] ECR 1839. 49 The nature conservation provisions in particular can be described in this way. For more detail see pp 67–74 in this book. 50 See chs 5 and 6 for a discussion of the approach of national courts and European courts to questions of legal reasoning and interpretation. 51 The effects of this are limited by the obligation of national courts to interpret national law as far as possible so as to be consistent with Union law where that Union law has come into force or the date of transposition has passed—see Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135; Case C-131/97 Annalisa Carbonari and Others v Università degli studi di Bologna, Ministero della Sanità, Ministero dell’Università e della Ricerca Scientifica and Ministero del Tesoro [1999] ECR I-1103; Case C-212/04 Konstantinos Adeneler and Others v Ellinikos Organismos Galaktos [2006] ECR I-6057; Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5825; and Case C-165/91 Simon JM van Munster v Rijksdienst voor Pensioenen [1994] ECR I-4661. 52 V Heyvaert, J Thornton and R Drabble, ‘With Reference to the Environment: the Preliminary Reference Procedure, Environmental Decision and the Domestic Judiciary’ (2014) 130 LQR 413. Contrast the approach to the ECJ discussed below at ch 6 with the general national approach to preliminary references as expressed in R v International Stock Exchange ex p Else [1993] QB 534 and Customs and Excise Commissioners v ApS Samex [1983] 1 All ER 1042 where the court acknowledges that the ECJ has certain advantages when construing European law, at 1055–156. See Moules, Environmental Judicial Review (n 26) 327. 53 Heyvaert et al, ‘With Reference to the Environment’ (ibid) 426–27. 54 G Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge, Cambridge University Press, 2012) 3–4; J Bengoetxea, N MacCormick and LM Soriano, ‘Integration and Integrity in the Legal Reasoning of the European Court of Justice’ in G de Burca and JHH Weiler, The European Court of Justice (Oxford, Oxford University Press, 2001).

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control that a national court has over both national and European law, and will also impact upon the approach to interpretation that is mandated to them by the ECJ. What this means is that the boundary lines within which the compromise on interpretation of environmental offences must be made are themselves bound by the ever-changing compromise that characterises the supremacy of EU law. There are additional difficulties that spring from the jurisdictional overlap, however, difficulties which go beyond questions of supremacy of norms, and which relate to legislative style and traditional interpretive technique. The detail of these two issues will be dealt with extensively below,55 so a thorough exploration of the legislative style of the EU is not warranted here, but the contrast between the style of Union and national legislation is clear, not least in the inclusion of aims within a preamble. Such a contrast can be seen if national and European nature conservation provisions are compared. The courts, therefore, are more experienced in handling national legislation than they are Union legislation, and the process of transposition, often a ‘copy and paste’ style process, leaves the national courts with less ‘familiar ground’ than they might desire. Furthermore, the approach to reasoning is very different in the two jurisdictions. This is for two primary reasons. Firstly, the judicial approach in the ECJ, reasoning primarily in French, is more in the nature of the syllogistic civil law style than it is similar to the common law.56 Secondly, the additional complication of the multitude of languages present, and of equal validity, in the Union, means that linguistic reasoning is not favoured by the ECJ.57 This contrasts with the primarily linguistic approach which is exemplified by a traditional common law process of interpretation.58 Such styles of reasoning are considered immediately below, but what is clear is that in considering questions of interpretation in environmental law, this book has to account for the different jurisdictional contexts within which the approach must work, or at least be accepted. To take this further, it must also account for the different approaches to risk, to property, and to criminal law, that these different jurisdictions represent. Once again, it is not suggested that this book can solve all of these problems. Instead, it can solve some of them, but it is important to explore the ground to get a sense of where within the overall scheme of environmental law the argument presented in this work sits. Where it sits is at the overlap between legal systems, and so it cannot ignore tensions that arise from differences in legal culture when considering questions of interpretation.

55

See pp 55–58 in this book. M Derlén, ‘Multilingual Interpretation of CJEU Case Law: Rule and Reality’ (2014) 39 EL Rev 295, 301. 57 ibid, and Conway, The Limits of Legal Reasoning (n 54). 58 R v Judge of the City of London Court [1892] 1 QB 273 (CA); Sussex Peerage Case (1844) XI Clark & Finnelly 85, 8 ER 1034 (HL) and see pp 141–44 in this book. 56

Interpretation and Judicial Reasoning

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V. Interpretation and Judicial Reasoning In looking at all of these issues, this book addresses questions of the appropriate judicial role, the expertise of judges, and what function they have to play in balancing the issues discussed above. The judiciary is central to this book. The solution to the problem of uncertainty in environmental offences presented here relies almost totally on the intervention of the judiciary. It requires it to use its expertise as interpreter to achieve a particular outcome. In so doing of course, it reduces, even if only marginally, the input of specialist regulators, of prosecutors, and of policy-makers and drafters in shaping a particular regime. In some cases these individuals or groups will be expert in a field, and this expertise must be central to the creation of ‘good law’ (however defined). In other cases, the individuals will be elected representatives, and the legitimacy of rules which impinge upon the liberty of those subject to them must depend, at least in part, of the status of such elected representatives. The judiciary, by contrast, is neither expert in environmental issues, nor is it elected. It is not trained in environmental science, but is required to assess that science, as well as interpret policy. These factors mean that environmental law poses particular challenges for legal reasoning, and interpretation of statutory material as a subset of that reasoning. But, in putting the role of the judiciary to the front and centre in this area, this book relies on judicial expertise, and judicial expertise lies in its experience in criminal law, and in interpreting legislation. It is an expertise that no other actor in this field shares, and so it is important to harness such experience. The process of interpretation and the nature of judicial reasoning is, however, a topic with its own controversies, and not without significant presence in the literature.59 Indeed, ‘the complexity of legal reasoning is matched only by the complexity of the evolving structures for environmental governance’.60 Although much of this discussion is deeply theoretical, it is also of daily relevance to the practice of law. The extent to which a judge must show fidelity to the purpose of someone drafting a law versus the extent to which he must honour the words used is at the very heart of theoretical and practical discussions of judicial reasoning and it is one to which we will regularly return throughout this work. There are, as is becoming clear is often the case, multiple elements to the role of judicial reasoning within environmental law, and once again, it is not possible to analyse them all here. Most importantly, the judiciary has to interpret words, and the process by which this takes place is central to the ideas presented in this book. In addition, however, we must also pay attention to the way that the judiciary makes decisions in general. The way that decisions are made—the role of experts, the way science is manipulated and understood to operate within the judicial forum, the relationship between adversarial proceedings and the sorts of decisions 59 60

For an extensive discussion of approaches to interpretation, see ch 7. D Fisher, Legal Reasoning in Environmental Law (Cheltenham, Edward Elgar Publishing, 2013) 3.

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that can be made—all constrain, and feed into the role that the judiciary plays within environmental law. In addition, there is the further issue, in a criminal context, of the division of roles between the jury and the judge, and the division between questions of fact and law. In a public law context this will be affected too by the approach of the courts to judicial review.61 This context is significantly different from that of a criminal trial, and the approach that the court takes to reasoning is thus also different. Therefore, firstly, a critical question is the degree of deference which the judge gives to the legislation both in terms of its purpose, and in terms of its wording. This depends on the degree to which the judge feels able to give the words of legislation an autonomous meaning, rather than the same meaning as is given in a different provision, line of case law, or in administrative guidance. Secondly, the choice of legal method is significant. As Maxeiner argues, ‘[l]egal methods are the principal means by which law content is made clear and by which law application is made predictable’.62 The tensions between the different approaches to such methods must be resolved. This cannot be done independent of context, but nor can it be done without some attempt at generality. The decision over the boundary lines of study will therefore be significant in terms of proposing a suitable approach to interpretation, and so too will be the values sought as part of selecting that approach.

VI. Criminal Law and Environmental Law Finally, it has been established that any approach to interpretation of environmental offences must take account not only of environmental protection but also property rights, human rights, the complexities engendered by risk regulation and scientific uncertainty and jurisdictional overlap. The approach must take account, most importantly, of the criminal law context. This is an area which suffers from a lack of analysis in the existing literature. There are important analyses of the merits of using criminal law in an environmental context, particularly in terms of regulatory design and the command/control debate,63 but the literature fails to fully appreciate the implications that a criminal law sanction has for the way such regulation can stand up to the difficulties that are inevitable in environmental law. To understand this fully, the range of options for regulatory intervention for the purposes of environmental protection must be explored. As Moules explains:

61

See pp 121–23 in this book. JR Maxeiner, ‘Legal Indeterminacy Made in America: U.S. Legal Methods and the Rule of Law’ (2006) 41 Valparaiso University Law Review 517, 526. 63 R Macrory, Regulation, Enforcement and Governance in Environmental Law (Oxford, Hart Publishing, 2010). 62

Criminal Law and Environmental Law

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There are six main ways in which public law regulates the environment. First, public law regulation may involve the setting of standards, for example in relation to water or air quality. Second, public law may require the authorisation of certain activities, such as the town and country planning regime, which requires planning permission to be obtained before development is carried out, or the environmental permitting system created by the Integrated Pollution Prevention and Control Directive, which requires certain environmentally harmful activities to be licensed. Third, public law may prescribe particular procedures to be carried out before an activity may be undertaken. A good example of this is the requirement for environmental impact assessment and strategic environmental assessment. Fourth, public law regulation may identify certain land or species that must be protected. Thus, EU and domestic law provides protection for designated species and habitats, as well as the greenbelt, Areas of Outstanding of National Beauty and Sites of Special Scientific Interest. Fifth, public law regulation may lead to the banning of certain activities, for example, fly-tipping. Finally, civil liability may be created, penalising environmentally harmful activity such as contaminating land.64

The process of, and the factors that bear upon, interpretation will be different, dependent upon which of these methods is chosen. Not only is the language of the sanction likely to be different, but the relationship between technical standards, administrative discretion, and punishment or sanction will be different in each, and the values represented by these legal techniques will vary. The nature of the sanction, and the potential punishments that come with criminal regulation, mean that questions of liberty, legitimacy in regulation, and certainty are brought into sharper focus than they would be were a regime premised upon civil sanctions.65 Theories of criminal law are not often considered in relation to environmental law, even though environmental regulation is often (a) a strict liability offence (or at least not based upon fault);66 and (b) an intervention based on risk or on the potential to create risk.67 In a UK context, furthermore, the use of the criminal law also brings into play the common law and its long-developed approach to criminal sanctions, which has been heavily tailored to particular contexts—harm to others, primarily—in its theoretical underpinnings.68 How, in an environmental context, can we reconcile 64

Moules, Environmental Judicial Review (n 26) 6. That criminal law is special in this respect is underlined by the ECJ’s approach to interpretation in relation to criminal law and by Art 7 ECHR. 66 Macrory, Regulation, Enforcement and Governance (n 63) 26–7. 67 SF Mandiberg, ‘Locating the Environmental Harm in Environmental Crimes’ (2009) 4 Utah Law Review 1177, 1179. 68 M Faure and M Visser, ‘How to Punish Environmental Pollution? Some Reflections on Various Models of Criminalization of Environmental Harm’ (1995) 4 European Journal of Crime, Criminal Law and Criminal Justice 316, 321; MM O’Hear, ‘Sentencing the Green Collar Offender: Punishment, Culpability and Environmental Crime’ (2004) 94 Journal of Criminal Law and Criminology 133; Mandiberg, ‘Locating the Environmental Harm’ (n 67) 1198; and Mandiberg and Faure, ‘A Graduated Punishment Approach’ (n 38) 448. For a discussion of the role of harm generally in environmental law, see P Cane, ‘Are Environmental Harms Special’ (2001) 13 Journal of Environmental Law 3; AC Lin, ‘The Unifying Role of Harm in Environmental Law’ [2006] Wisconsin Law Review 897; and TS Aagaard, ‘Environmental Harms, Use Conflicts and Neutral Baselines in Environmental Law’ (2011) 60 Duke Law Journal 1505. 65

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this focus on anthropological harm69 with the intergenerational and sometimes ecocentric values that such regulation implies?70 The answer, once again, is that this assessment can only be carried out by reference to context. In some contexts, a traditional harm-based approach is appropriate and does not need substantial modification to accommodate environmental crime (pollution causing illness, for example). In others, habitats’ protection, for example, the relationship between the common law understanding of the principles of criminal law, and the use to which such criminal law is being put, is harder to analyse. The complexity of this interplay is heightened by the addition of the property rights and human rights dimensions discussed above. Once again questions arise as to what implications this interaction has for interpretation of environmental regulation. It highlights the importance of—broadly speaking—respect for the regulated in the process of regulation. It forces a consideration of environmental protection from the perspective of those whose liberty is constrained by such regulation. The common law generally prefers to reason from central cases, worrying not about liability on the periphery. It likes to face theoretical uncertainties only if and when they arise in practice and to use its principles of interpretation to veer against liability in situations of uncertainty.71 We must ask, however, whether such a potential lack of foresight is possible or helpful in environmental law when considered from the perspective of the regulated. Sometimes we do need to consider the theoretical offender, even when faced with a clear breach of the rules, when thinking about questions of interpretation and meaning in the instant case. The theoretical offender must be able to plan his actions. This is even more the case where, as is discussed below, there is a low level of moral certainty in relation to the specific prohibition.72 Thus although it is argued here that a common law style approach to interpretation would be useful in an environmental law context, it is an approach that must be modified to account for the unusual features of environmental criminal law. Once again, there is more than one layer to the interaction between the environment and criminal law. The strict liability nature of many environmental offences,73 linked with their perceived lack of moral blameworthiness74 (at least when compared with traditional criminal law offences) and the possibility of punishment for abstract harms75 means that the attitude of the regulator, the regulated, and the public at large, is different for environmental offences than it 69

Mandiberg and Faure, ‘A Graduated Punishment Approach’ (n 38) 450. Mandiberg, ‘Locating the Environmental Harm’ (n 67); and Mandiberg and Faure, ‘A Graduated Punishment Approach’ (n 38). 71 Dyke v Elliott (n 39) and pp 141–44 in this book. 72 J Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’ (1994) 53 CLJ 502, 520. 73 Macrory, Regulation, Enforcement and Governance (n 63) 26–27. 74 BM Fissell, ‘Abstract Risk and the Politics of Criminal Law’ (2014) 51 American Criminal Law Review 657. 75 Faure and Visser, ‘How to Punish Environmental Pollution’ (n 68) 320; Mandiberg, ‘Locating the Environmental Harm’ (n 67) 1197. 70

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37

is in other contexts. This has a knock-on effect in the processes in the court. In its most basic terms, the imposition of a criminal law sanction impacts upon behaviour, attitudes, and legal processes: at its most complex, it calls into question the legitimacy of any interference with liberty. Furthermore, the relevance of the attitude of the regulator means that there is a great deal of discretion in the operation of the offences, both in terms of the prosecution of the offence, and in terms of the particular standard set where the offence is a breach of a licence condition.76 This contributes to uncertainty and raises questions of legitimacy in regulation. By raising these questions, the criminal law context demands that we understand our environmental law by reference to that context. This book attempts to understand how the complexities of regulating to protect the environment, and particularly the complexities of judicial enforcement of such regimes, interact with criminal law. The offences straddle the boundary between private law, regulatory law, and criminal law, and this all operates in the face of harms which are disparate, diverse, and often of only indirect impact upon human beings. The nature of the offence, which impacts upon likely offenders and their identity and resources, in turn has implications for prosecution policy and the general approach of the regulator. This is not ‘normal’ criminal law. The regulator will often negotiate with the potential offender or offender with a view to ensuring compliance and promoting good practice in the future, rather than focusing on punishment for past acts.77 The result is that only the very worst offenders or offences will end up being prosecuted. This, of course, impacts upon the approach taken by the courts to interpretation, either consciously or subconsciously. Uneasiness over the strict liability nature of many of these offences, as well as uncertainty regarding blameworthiness, will also add to the complexity of the overall picture. In addition, in an environmental context, as Faure and Visser have convincingly argued, questions of burden of proof and evidence are often linked to public administration and technical expertise due to the linking of criminal offences and environmental permitting.78 This raises the question, ‘[i]s there, in other words, still room for the classic autonomy of the criminal law, given the large dependence of environmental criminal law upon administrative, or at least, technical decisions and/or information?’.79 The problem of proof also causes problems for the standard of causation to be applied.80

76

Faure and Visser, ‘How to Punish Environmental Pollution’ (n 68) 322. Natural England and the Environment Agency both pursue a policy of negotiation to ensure compliance ahead of punishment for breach. See Natural England, ‘Compliance and Enforcement Position’ (London, Natural England, 2011) and Environment Agency, ‘Enforcement and Sanctions Statement’ Policy 1335_10 (previously EAS/8001/1/1), v2 (London, Environment Agency, 2011). 78 Faure and Visser, ‘How to Punish Environmental Pollution’ (n 68). 79 ibid 317. 80 Mandiberg, ‘Locating the Environmental Harm’ (n 67) 1202–04; Mandiberg and Faure, ‘A Graduated Punishment Approach’ (n 38) 478. 77

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As with property law, the result must be a mutual accommodation and compromise of principle. The criminal law must bend in such a way as to not prevent necessary and justified regulation, but environmental law must not impact upon liberty beyond that which is accepted within the criminal law. The principles of each system must work with, as far as possible, the principles of the other to ensure that the outcomes are optimal. Again, this means that we must consider openly and deliberately where compromises are made. Of course, we must to an extent trust to the gradually shifting sands of the common law allowing a subtle compromise to emerge, but we must not be unaware that the compromise is emerging, and that input into its shape is necessary if we are not to stumble into a position that sacrifices too much, or gains too little. Once more, this book suggests an approach that allows the conscious making of such a compromise.

VII. Conclusion Thus the interpretive framework developed here must work within the values of property law; human rights; risk regulation within the parameters of scientific uncertainty; competing legal systems; the values inherent in judicial reasoning and the role of the judiciary; criminal law; and, of course, environmental protection. This is naturally difficult, if not impossible. They cannot all be fully accommodated, but an awareness of where and why compromises are being made is essential. In all of this then the watchwords are complexity, and compromise. Comprise must be reached between the principles and liberties of those with private property rights, and this must be done in the context of land and the environment. Compromise too must be reached between liberty, and environmental protection, both in the criminal and human rights contexts. So too must we take account of the human needs that lie in the demand for a clean and healthy environment. This compromise is not just a compromise about the content of a legal intervention, or about legal policy, or even about legal design. It is a compromise too concerning the way that law is done: the processes involved, the attitude of the courts, and the principles that the courts rely on where there is no clear answer as to what is to be done. This book examines one of the issues that has emerged as part of the development of this compromise—interpretation of environmental criminal offences— but it is only a very small part of that compromise. Others with a different mode of analysis—empirical or theoretical—may very well seek a different compromise, drawn along different lines, and these positions too will themselves then have to be reconciled. What is crucial, however, is that we are clear that environmental law and the other areas of law with which it interacts are engaged in mutual change, prompted by each other’s needs. This relationship cannot be one way. We cannot

Conclusion

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be environmentally myopic and seek only property rights protection, but nor can we be blind to the impact that constraints on liberty, reduction in value and use of property, and infringement of due process and legitimacy to which effective environmental regulation can lead. This introductory discussion has sought to show the complexity of the context within which any environmental law scholarship must operate, but also the contributions that scholars should be seeking to make to the discussion, especially in relation to questions of the appropriate approach to interpretation. There has been much discussion as to what constitutes good scholarship in the field of environmental law, and a lot of this discussion seeks to highlight the complexity of studying such law.81 A lack of scientific knowledge; the indeterminacy of the science and policy in this area; the lack of consensus as to the best approach: these issues all make it hard to make a contribution to environmental law scholarship which does not speak at cross purposes to much of which already exists. The lack of a clear conceptual framework onto which scholarship can hang means that agreement or disagreement is difficult to find. No doubt this work too will be subject to some of the same criticism, and no doubt with some merit, but that is no reason to be disheartened. Rather, it should be accepted that scholarship will always have a contribution to make—be it doctrinal, policy, or empirical—but that its contribution, for now, can only be understood if the lack of consensus over framework and methodology is accepted. This discussion has attempted to demonstrate that the background to the question being considered here is a highly complex one with many interconnected and mutually influencing tensions simmering under an equally complex series of legislative interventions, common law rules, and international practices. The process of a decision touches on the public and the private, and the role of the judiciary in this process is itself multifaceted and not without its own controversies. What it will also try to show, however, is that although solutions to specific legal problems must recognise the complexity of this context, it is possible to solve such problems in a modest way by not getting too bogged down in the background by focusing on what it is most important to ensure in a particular practical context. As Pederson argues: When faced with the plurality of values which we find in environmental law, pragmatism reminds us that the best way to strike a balance is often through fallibilistic inquiry, focussing on the middle ground, while paying attention to what is practically possible.82

The practical too must be the subject of scholarship. It is to the practical that this book now turns.

81 E Fisher et al, ‘Maturity and Methodology: Starting a Debate About Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213. 82 OW Pederson, ‘Modest Pragmatic Lessons for a Diverse and Incoherent Environmental Law’ (2013) 33 OJLS 103, 125.

3 Legal Certainty Before going on to discuss the interpretation of the waste, contaminated land, and habitats’ protection regimes, and demonstrating the practical uncertainty that exists in relation to those regimes, it is important to understand what is meant by certainty. This chapter provides such a definition. It will then discuss national and European case law examining the principle of certainty. Prima facie the meaning of certainty in interpretation is clear: if it is possible to predict how a court will interpret a term, that law is certain. What such a definition of certainty underplays, however, is the difficulty that arises when we attempt to define certainty in law, and thus to outline what a new approach to interpretation might hope to achieve. Whilst it is not the aim of this book to provide a comprehensive or universally accepted definition of legal certainty—if indeed such a thing were possible—this chapter will explain which definition of legal certainty is being employed here and why. This chapter will then examine the value of legal certainty in the environmental context in particular.

I. Defining Legal Certainty Certainty can be defined as a goal to be attained by a legal system. It can be defined in the abstract. It could also be defined by reference to legal sources and thus be accorded a legal definition. There is no bright line between the two (not least because the process of considering judicial interpretation of the requirement of certainty is, in itself, an act of interpretation, therefore depending at least in part on the values that the interpreter brings to their subjective assessment of meaning).1 Since the aim of this book is a practical one, however, it is useful to consider the current judicial approach to certainty as well as its theoretical definition. This has the added advantage of drawing together the theoretical and legal need to improve certainty, making the solution to the certainty problem presented in this book acceptable as part of the legal principles of the relevant legal system. This chapter therefore, firstly assesses a definition of legal certainty in the abstract.

1 J Engberg, ‘Statutory Texts as Instances of Language(s): Consequences and Limitations on Interpretation’ (2004) 29 Brook Journal of International Law 1135, 1139.

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It will then assess the national case law and European case law to determine how the judiciary define certainty.

A. Perfect Certainty Although it may be easy in a particular case to tell when a rule is uncertain, it is difficult to define what would make law ‘sufficiently certain’. What is clear however is that perfect certainty is impossible, given the limitations of language,2 the foresight of drafters of legislation,3 a lack of knowledge as to the relevant facts in any particular case, the presence of discretion for prosecuting authorities and enforcing agencies,4 and, finally, the fact that judges are not omniscient.5 ‘Complete legal certainty is neither possible nor desirable’.6 Much of the literature on this question relates not to finding a definition of certainty, but goes deeper to the issue as to whether certainty is possible at all. Such a focus on the possibility of perfect legal determinacy is beyond the scope of this work. However, whilst perfect certainty may be impossible, law can be more or less certain. As will be discussed below, where possible we should attempt to maximise certainty. A crucial part of the legal indeterminacy thesis however is the role that judicial reasoning must play in the application of law,7 and the inevitable discretion that this involves. The legal indeterminacy debate therefore raises the need to discuss legal methods and interpretation when considering the meaning of legal certainty. This will be discussed below.

B. Certainty and Predictability Before considering the role of the judiciary in legal certainty, a definition of such certainty will be provided. Formal legal certainty is a matter of predictability of outcome using clearly drafted rules, consistently applied. Substantive legal certainty encompasses predictability in a wider sense, in the idea that those subject to a rule might consider prohibition of a particular act likely even without having read the relevant case law or statutory provision. This sort of certainty relates to the idea that the law is more predictable where its rules have a clear justification

2 TAO Endicott, ‘Linguistic Indeterminacy’ in TAO Endicott, Vagueness in Law (Oxford, Oxford University Press, 2000) 7. 3 P Popelier, ‘Legal Certainty and the Principles of Proper Law Making’ (2000) European Journal of Law Reform 321, 330. 4 Endicott, Vagueness in Law (n 2) 7. 5 HWR Wade, ‘The Concept of Legal Certainty’ (1941) 4 MLR 183, 198. 6 JR Maxeiner, ‘Legal Certainty: A European Alternative to American Legal Indeterminacy’ (2007) 15 Tulane Journal of International and Comparative Law 541, 547. See also B Bix, Law, Language and Legal Determinacy (Oxford, Clarendon Press, 1993); Endicott, Vagueness in Law (n 2); K Kress, ‘Legal Indeterminacy’ (1989) 77 California Law Review 283; JR Maxeiner, ‘Legal Indeterminacy Made in America: U.S. Legal Methods and the Rule of Law’ (2006) 41 Valparaiso University Law Review 517. 7 Maxeiner, ‘Made in America’ (n 6) 520.

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and purpose that align with the values of the society in which they operate.8 In this sense, ‘legal certainty is a compromise between predictability of legal decisions and their acceptability’,9 if certainty encompasses both formal and substantive certainty. When considered in this way, formal certainty and moral or substantive certainty are seen as factors that can be balanced. Thus formal certainty can be sacrificed in order to achieve a higher degree of moral certainty. Such an approach to legal certainty emphasises the appeal of the purposive approach to interpretation. The higher the correlation between interpretive outcome and purpose, where that purpose is a legitimate one, as environmental protection ought to be considered, the higher the degree of moral certainty. Such is the argument of Paunio. She reasons that in the EU context in particular, where multilingualism reduces the appropriateness of linguistic reasoning,10 a highly purposive approach, by increasing substantive certainty, will increase legal certainty as a whole.11 Her definition of legal certainty therefore encompasses other substantive values, including effectiveness and enforcement, since there can be a legitimate expectation as to both. A similarly multi-faceted definition of legal certainty is developed by Popelier12 through reliance on the principles of proper regulation developed in the Belgian context,13 relying on the work of Fuller.14 Her focus is indeed on certainty as predictability. She argues that, ‘[t]he legal system must enable one to live in an ordered community, where persons can realize their own plans, within the limits of the law which coordinates the relations between these persons in a clear and logical way’.15 Her approach is one which relies on the value of autonomy16 to promote certainty in the form of transparency,17 accessibility18 and coherence in the legal system as a whole.19 Such formal elements of certainty are for Popelier crucial for the proper functioning of the legal system. Where formal certainty is not perfectly attainable however, she suggests that substantive certainty should be promoted, relying on the legitimate expectations of those subject to the law.20 Again, her conception of substantive certainty inevitably encompasses other elements of a proper functioning legal system which would not immediately be thought of as being included within a definition of legal certainty.

8

CS Diver, ‘The Optimal Precision of Administrative Rules’ (1983) 93 Yale Law Journal 65, 67. E Paunio, Legal Certainty in Multilingual EU Law: Language, Discourse and Reasoning at the European Court of Justice (Farnham, Ashgate Publishing 2013) 52. 10 ibid 1. 11 ibid 53–54. 12 Popelier, ‘Legal Certainty’ (n 3) 321. 13 ibid, 322 fn 3. 14 L Fuller, The Morality of Law, rev edn (New Haven, Yale University Press, 1973). 15 Popelier, ‘Legal Certainty’ (n 3) 325. 16 ibid 326. See also Wade, ‘The Concept of Legal Certainty’ (n 5) 189. 17 Popelier, ‘Legal Certainty’ (n 3) 326. 18 ibid 327, 329–32. 19 ibid 330. 20 ibid 340. 9

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Reliance on substantive certainty in this way overlooks two key issues. Firstly, the degree to which formal legal certainty can and should be balanced against moral clarity in law is far from clear. As Wade argues, where substantive certainty (in the form of justified decision-making) is sought over formal certainty, uncertainty will still abound. It will simply be a different kind of uncertainty.21 Secondly, the two criteria for acceptable law-making and interpretation operate at different levels, and it is perhaps unhelpful to label them both as aspects of certainty. Formal certainty relates to predictability by reference to promulgated sources of law. It is therefore intimately connected with the manner and form in which a norm is communicated to those subject to that norm. Whatever its moral content, it is part of the requirement of legitimacy in law-making expressed by the rule of law that the law as promulgated is the same as the law as applied. Substantive clarity is designed to produce a degree of certainty in practice where the law as promulgated is unclear. It therefore requires those subject to the law to engage with its content on the basis of a moral imperative to, for example, protect the environment. Thus, when considered as reasons for the subject to act in a particular way, ensuring formal certainty will produce a different set of reasoning as to why the actor should refrain from a specific act than moral certainty does.22 Furthermore, formal certainty is ‘easy’ for the subject. They may not see the subjective certainty in the law, but nor are they required to find it, if formal certainty exists. As Wade argues, ‘[i]t would be intolerable for a man to have to rely on his own moral judgment in order to know whether a court would approve his actions or not’.23 Thus, by operating in different ways, it is not clear that the one can, or should, be sacrificed to the other under the guise of promoting a single goal—certainty. This is not to say that the ideal would not be to achieve both. Of course, it would be, but when considering legal certainty from the practical perspective of those subject to a rule, the formal legal certainty which allows them to predict the law’s application without reference to subjective criteria of ‘the good’, is to be prioritised whether or not this produces moral clarity in the law. This is particularly the case when the role of the courts is considered. It may be that this is merely a matter of correct labelling. What this book seeks to achieve is not legal certainty as a whole, but formal legal certainty. Either way, transparency and accessibility should be seen as central to the definition of legal certainty. Consideration of the different ‘levels’ of certainty therefore suggests that a choice must be made regarding prioritisation of formal certainty over substantive certainty where the goal sought is that those subject to a rule can know in advance what is required of them. What it also highlights however is that legal certainty is tied up with legal method and the role of the court since both transparency and 21

Wade, ‘The Concept of Legal Certainty’ (n 5) 187. For more on the operation of legal rules as reasons for action, see J Raz, Practical Reason and Norms (Princeton, Princeton University Press, 1990). 23 Wade, ‘The Concept of Legal Certainty’ (n 5) 187. 22

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accessibility are a matter not just of technique in legislative drafting, but also in judicial interpretation of law. The judiciary are therefore central to the achievement of a high degree of formal legal certainty. Such a role is inherent in the judicial function. As Bendix notes: ‘[t]he concept of legal certainty is a central concept of [our] inherited legal methods, in which all have grown up … It is the air in which all jurists have learned to breathe’.24 This raises a further issue however as to the degree to which coherence forms part of formal legal certainty. According to Paunio, ‘although conceptually independent, the imperative of predictability in judicial reasoning possesses a close linkage with the internal coherence of reasoning’.25 As such, in engaging with questions as to how to promote formal certainty, it is necessary to engage too with questions of coherence. By coherence here is meant the relationship between the rules. It encompasses concerns such as the elimination of contradictory rules, avoiding where possible obsolete rules etc. It is not concerned with the broader concept of coherence which represents a form of coherence in reasoning whereby the legal system as a whole can be systematised according to the values that underpin it. In this sense, it is formal coherence which is being sought. This sort of coherence will allow for each individual rule to work as a harmonious whole with the other rules in formal terms, even if in terms of purpose or philosophy they are not so harmonised. In this limited sense, coherence too forms part of legal certainty, since those subject to the rules must know that if they follow rule x to the letter, they will not be punished subsequently for breaching rule y for doing precisely what rule x requires. For these reasons, two of the three criteria outlined by Diver in relation to certainty in regulation will form the basis of the definition of legal certainty used in this book: First, he [the regulator] will want to use words with well-defined and universally accepted meanings within the relevant community. I refer to this quality as ‘transparency.’ Second, the rulemaker will want his rule to be ‘accessible’ to its intended audiencethat is, applicable to concrete situations without excessive difficulty or effort.26

Some transparency in terms of language is required. Those subject to the rule must be able to assess its meaning. It is necessary, however, that some language will take on a technical meaning within its context,27 and so that transparency in language must be a practical transparency. Once the rules have been contextualised and made operational by the courts, it must then become possible to identify their meaning such that the words become ‘well-defined’ and ‘universally accepted’.

24 Maxeiner, ‘A European Alternative’ (n 6) 554 citing L Bendix, Das Problem Der Rechtssicherheit (Berlin, Heymann, 1914) (Maxeiner’s translation of ‘Der Begriffder Rechtssicherheit ist der Zentralbegriff der fiberlieferten Methode, in der alle die groB geworden sind, die diese Methode jetzt bekiimpfen, er ist gleichsam die Luft, in der alle Juristen atmen gelernt haben’). 25 Paunio, Legal Certainty in Multilingual EU Law (n 9) 98. 26 Diver, ‘Administrative Rules’ (n 8) 67. 27 Endicott, Vagueness in Law (n 2) 17–21.

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In relation to the accessibility of the rules, this is not just a matter of ease of finding the rules, nor indeed of ease of assessing what the applicable rules to any fact or situation are, but goes beyond this to questions of accessibility and coherence in terms of the overall framework of rules. Thus accessibility suggests not only the ease of finding out the rule, but also of finding out the relationship between the various applicable rules and encompasses the criterion of formal coherence outlined above. These criteria may not always pull in the same direction. ‘If transparency always correlated closely with accessibility … this would present no difficulty’,28 but it does not. Finally, therefore, the definition of formal legal certainty utilised in this book must recognise that these criteria cannot be pursued equally, simultaneously, at least not in practice. Rather, one will on occasion have to be sacrificed to the other. Two conclusions can be drawn from this fact. Firstly, it is desirable to sacrifice any of these two to the minimum extent possible. Resort should not be had to considerations relating to purpose etc to explain the extent to which one aspect of certainty is abandoned. Rather, the pursuit of legal certainty should require that only other certainty-based considerations justify limiting the accessibility or transparency of the relevant rules. For example, a rule may be extremely transparent to a defined class of subjects, expert in a particular area. This rule, to them, is clear. By using technical definitions, however, the rule will be less accessible to the ordinary citizen. This is acceptable since one aspect of legal certainty is pursued to the detriment to another aspect. What would not be acceptable would be using highly discretionary terms with no fixed contextual meaning since they would produce a more flexible rule, but where the rule is very easily communicable to the general public. Transparency is sacrificed: accessibility is promoted due to the ‘everyday’ language of the provision. Transparency is not however sacrificed in order to achieve accessibility, but rather to achieve a particular substantive goal. This is unacceptable in this author’s view since it treats legal certainty as an adjunct to effectiveness in law, rather than a goal in and of itself. Secondly, all else being equal, the legal system ought to have a defined process by which this ad hoc compromise between transparency, accessibility and coherence is made. A different balance may be struck between transparency and accessibility in relation to different rules, but it would be preferable, and more certain overall, if there were to be a predictable process by which this compromise is reached. Such can be found in a framework which guides judicial interpretation of certain terms in a particular context, directing them to promote transparency as a matter of primacy, for example. Again, the relevance of legal method to legal certainty is demonstrated by the potentially mutually inconsistent elements of the principle of legal certainty. Whilst absolute certainty cannot be achieved, practical certainty is possible. The vagaries of language require constant evaluation, but this evaluation can,

28

Diver, ‘Administrative Rules’ (n 8) 70.

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itself, take place in a predictable way. The reality of indeterminacy in language is therefore less paralysing than some would suggest. It does not prevent (almost) transparent and (almost) accessible law, and it definitely does not prevent practically transparent, accessible and coherent law.

C. Certainty in Context Context matters when attempting to achieve certainty—per Radin, ‘there are no rules that can be understood apart from the context’.29 As Endicott argues: Even though it is risky to generalize about contexts, we should not underrate the extent to which they make meaning clear—just think how, if someone asks the meaning of an odd word, we instinctively ask for the sentence in which it was used. A context can even determine when somebody means something other than what they said.30

The degree of predictability in the relevant factual situation in particular will alter the judicial method likely to produce the highest degree of legal certainty. In some cases, the factual complexity of the situation being regulated will prevent predictable regulation entirely. Although most legislation has a clear ‘central’ meaning, uncertainty is encountered the further from this central meaning a situation is found. In highly difficult situations however, there will be such uncertainty that there is in fact no central meaning. As Braithwaite argues: ‘[t]he more complex and changing the phenomenon being regulated, the wider [the] penumbra is likely to be; indeed in the most difficult contexts the penumbra of uncertainty swallows up the core creating large numbers of laws that are never enforced’.31 As a result, sensitivity to context is essential in creating certainty and where there is a ‘wide penumbra’, additional factors may need to be included in an approach to interpretation to overcome these difficulties, whilst retaining transparency and accessibility as the goal. Thus context determines the most appropriate interpretive factors. Furthermore, context is also relevant in terms of the situation within which the interpreter finds themselves called upon to interpret the relevant term, be that their jurisdictional context, or the role that they plays within that jurisdiction. Black argues that: Certainty in the application of a rule can only arise from agreement about its terms within an interpretive community. Certainty does not flow so much from objective features of the clarity and precision of the words in rules, as lawyers sometimes assume,

29

MJ Radin, ‘Reconsidering the Rule of Law’ (1989) 69 Boston University Law Review 781, 817. Endicott, Vagueness in Law (n 2) 22. 31 J Braithwaite, ‘Rules and Principles: A Theory of Legal Certainty’ (2002) 27 Australian Journal of Legal Philosophy 47, 54. See also BN Cardozo, The Nature of the Judicial Process (New Haven, Yale University Press, 1921) 131; HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593; and Endicott, Vagueness in Law (n 2) 8. 30

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but from shared assumptions in a regulatory community about the interpreted shape of a rule.32

Such a view is supported by Diver who argues that ‘[t]he degree of precision appropriate to any particular rule depends on a series of variables peculiar to the rule’s author, enforcer, and addressee. As a consequence, generalizations about optimal rule precision are inherently suspect’.33 It is therefore difficult to generalise about the best way to achieve certainty within a legal system without making reference to the context of a decision. For that reason, the approach to certainty discussed here, as has been made clear, is one which focuses on the role of the court in criminal law situations in cases of environmental regulation. Importantly, as will be seen, there are two different situations that arise: criminal trial or appeal; and judicial review. The approach of the court will necessarily be different in each and so the balance between the relevant interpretive factors will be different.

II. Transparency and Accessibility in National and European Case Law Both the European Court of Justice (ECJ) and national courts invoke legal certainty, or a principle akin to legal certainty. The statements from the ECJ are not detailed. Nevertheless, what is apparent from the case law is that the principle of legal certainty is seen as a meta-principle of the Union legal order,34 and that it is not only relevant to questions of legal drafting, but also to interpretation. This can be seen in Commission v United Kingdom:35 The first point to be borne in mind here is the need to ensure legal certainty, which means that rules must enable those concerned to know precisely the extent of the obligations which they impose on them … The Commission thus cannot choose … an interpretation which departs from and is not dictated by the normal meaning of the words used.

32 Braithwaite, ‘Rules and Principles’ (n 31), discussing J Black, Rules and Regulators (Oxford, Clarendon Press, 1997). 33 Diver, ‘Administrative Rules’ (n 8) 76. 34 The principle of legal certainty appears very early in the jurisprudence of the ECJ: Case 13/61 Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH and Maatschappij tot voortzetting van de zaken der Firma Willem van Rijn [1962] ECR 00045, 52; Case C-143/93 Gebroeders van Es Douane Agenten BV v Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-00431, [27]; Case C-248/04 Koninklijke Coöperatie Cosun UA v Minister van Landbouw, Natuur en Voedselkwaliteit [2006] ECR I-10211, [79]; Case C-161/06 Skoma-Lux sro v Celní ředitelství Olomouc [2007] ECR I-10841, [38] and [67]; Case C-205/82 Deutsche Milchkontor GmbH and others v Federal Republic of Germany [1983] ECR 2633, [30]; Case C-169/80 Administration des douanes v Société anonyme Gondrand Frères and Société anonyme Garancini [1981] ECR 1931, [17]; Case C-92/87 Commission of the European Communities v French Republic [1989] ECR 0405. 35 Case C-209/96 United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities [1998] ECR I-05655.

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This approach clearly highlights the close link between legal certainty and the relationship between interpretation and the words used in a specific provision. Another classic statement of the meaning of legal certainty from the ECJ can be seen in Stichting ROM-projecten v Staatssecretaris van Economische Zaken36 where the Court stated: In particular, that principle of legal certainly requires that Community rules enable those concerned to know precisely the extent of the obligations which are imposed on them … Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly.37

It is clear from this that the ECJ is focusing not on moral clarity in the relevant rules, but on transparency and accessibility. Indeed, in Consorzio del Prosciutto di Parma and Salumificio S. Rita SpA v Asda Stores Ltd and Hygrade Foods Ltd38 the Court explicitly drew a connection between legal certainty and transparency: ‘[t]he scope and effect of a Community provision must be clear and foreseeable to individuals, otherwise the principle of legal certainty and the principle of transparency are breached’.39 Those subject to the relevant rules must be able to ascertain in advance what is required of them by law. The case also highlights that this is especially the case where a rule has financial implications,40 but it is clear that criminal consequences will also require a higher degree of predictability.41 It is apparent also from the case law of the ECJ that definitions of terms central to liability are very important to the principle of legal certainty. In the environmental context, the Court found against Ireland on the grounds that they have not established a system whereby, ‘all pollution reduction aspects are defined in advance in a manner which is clear, precise and unequivocal’.42 Such a lack of definitional clarity is in itself a breach of the principle of legal certainty as defined by the ECJ, even if the procedure established by the system is clear. Such might be considered as forming the ‘transparency’ side of the ECJ’s approach. The ECJ also relies on accessibility. This can be seen in Skoma-Lux43 where the failure to publish in the national language in the Official Journal precluded reliance on the regulation since ‘an act adopted by a Community institution … cannot be enforced against natural and legal persons … before they have had the

36 Case C-158/06 Stichting ROM-projecten v Staatssecretaris van Economische Zaken [2007] ECR I-05103. 37 ibid [25]. 38 Case C-108/01 Consorzio del Prosciutto di Parma and Salumificio S. Rita SpA v Asda Stores Ltd and Hygrade Foods Ltd [2003] ECR I-05121. 39 ibid [85]. 40 See also Case C-255/02 Halifax plc, Leeds Permanent Development Services Ltd and County Wide Property Investments Ltd v Commissioners of Customs & Excise [2006] ECR I-01609, [72]. 41 Criminal sanctions fall under the category of ‘unfavourable consequences’. See Case C-318/10 Société d’investissement pour l’agriculture tropicale SA (SIAT) v Belgian State, unreported [58]. See also Case C-94/05 Emsland-Stärke GmbH v Landwirtschaftskammer Hannover [2006] ECR I-02619, [43]–[44]. 42 Case C-282/02 Commission of the European Communities v Ireland [2005] ECR I-04653, [82]. 43 Case C-161/06 Skoma-Lux sro v Celní ředitelství Olomouc [2007] ECR I-10841.

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opportunity to make themselves acquainted with it’.44 The two aspects of certainty outlined in this chapter—transparency and accessibility—are therefore present in the approach of the ECJ to legal certainty. The position in the national courts is the same. Reliance on transparency and ‘practical certainty’ as a guiding principle for judicial development of common law rules and of interpretation of statutory provisions has been present in the jurisprudence of the English courts since at least the eighteenth century. Often, such questions are tied up with questions as to how the courts should best approach their task of interpretation. There is less obvious focus on the question of accessibility in this jurisprudence, and indeed it might be said that the English courts with a tradition of common law (and therefore of relative difficulty in pointing to a definitive legal source) may not be as concerned with issues of publication as is present in the European case law. Nevertheless, the rhetoric used by the judiciary demonstrates that at the heart of its approach is the need to be able to rely on statements when they are in fact published, and this relates to the need to ensure that law is accessible. Thus, for example, in the early cases Lord Mansfield reasoned that: ‘[t]he daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules, easily learned and easily retained’,45 and later that, ‘[i]n all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other’.46 In the commercial context at least, therefore, not only does the common law seek to ensure certainty for its own sake (rather than as a means by which the law becomes more successful in achieving a particular goal), but also prioritises this over other considerations. In more recent case law, Lord Diplock is the most vocal advocate of ensuring accessibility and transparency in legal rules: The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.47

The different constitutional considerations relevant to decisions made after 1973, however, also prompt an explicit mention of the principle of legal certainty articulated by the ECJ. As Lord Diplock again stated: Elementary justice or, to use the concept often cited by the European Court, the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him … by reference to identifiable sources that are publicly accessible.48

44

ibid [37] and Case C-108/01 Consorzio del Prosciutto di Parma and Salumificio S Rita SpA (n 38) [95]. Hamilton v Mendes (1761) 2 Burrow 1198, 97 ER 787, 1214. 46 Vallejo v Wheeler (1774) 1 Cowpoer 143, 98 ER 1012, 153. 47 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 638. 48 Fothergill v Monarch Airlines [1981] AC 251, 279. See also R (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 349, 398–99. 45

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Thus this later jurisprudence does reference the requirement of accessibility, as well as transparency in the form of predictability in the application of the rules. Perhaps the strongest references to legal certainty in very recent case law, however, are to be found in the judgments of the criminal courts. This is unsurprising. Lord Bingham in R v Rimmington49 by relying on the earlier Court of Appeal decision in R v Misra and Srivastava50 gave strong support to the critical importance of legal certainty to the proper functioning of the legal system. Considering more closely those comments in R v Misra, it is clear that both elements—transparency and accessibility—are present in the common law approach to legal certainty, especially in criminal law: It is not to be supposed that prior to the implementation of the Human Rights Act 1998, either this court, or the House of Lords, would have been indifferent to or unaware of the need for the criminal law in particular to be predictable and certain. Vague laws which purport to create criminal liability are undesirable, and in extreme cases, where it occurs, their very vagueness may make it impossible to identify the conduct which is prohibited by a criminal sanction. If the court is forced to guess at the ingredients of a purported crime any conviction for it would be unsafe. That said, however, the requirement is for sufficient rather than absolute certainty. There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.51

It is not just the reliance on legal certainty as a guiding principle to interpretation which is interesting here however. It is also of note that Treacy LJ highlighted that this principle is one which is founded as much in common law as it is in human rights or European law: ‘[i]n our judgment, the incorporation of the Convention, while providing a salutary reminder, has not effected any significant extension of or change to the “certainty” principle as long understood at common law’.52 Important too is the reference to ‘sufficient’ rather than absolute certainty. It was highlighted above that absolute certainty is impossible. Rather, the law must be sufficiently certain to achieve those goals which certainty encompasses to the best extent possible. This certainty is not an adjunct to other legal values, such as effectiveness, but is necessary in itself to ensure that the legal system operates in accordance with the rule of law and in a, broadly speaking, ‘just’ manner. In summary therefore, both the European and the national courts demand legal certainty. In so doing they look, primarily, for transparency—those subject to the rules must know in advance what obligations rest upon them, especially in criminal law—and then secondly, for accessibility—they must be able to find out about these obligations in a relatively straightforward manner. The two aspects 49 50 51 52

R v Rimmington [2005] UKHL 63, [2006] 1 AC 459. R v Misra and Srivastava [2004] EWCA Crim 2375, [2005] 1 Cr App R 21. ibid [34]. ibid [37].

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are usually complementary, and the degree of compliance with one affects the other. This need to comply with these conditions is most apparent in an area where punishment is imposed following a failure to comply with a relevant rule. Criminal law in particular requires a high degree of certainty. In the area of law considered here—environmental criminal law, encompassing both national and European law—the common law principle and the principle of legal certainty expressed by the ECJ can work hand in hand. The rules must be predictable and transparent. Those subject to them must be able to ascertain in advance what is required from them. Secondly, the rules must be accessible. The requirements of the rules must be expressed in the legislation or regulations themselves, with case law explanation of what these words mean. This jurisprudence, therefore, calls for a linguistically-focused common law approach.

III. Certainty in Environmental Law In chapter five, it will be shown that the offences discussed in this book each suffer from problems of certainty in interpretation. These problems do not appear to be coming closer to resolution despite, in some cases, considerable attention from the courts, and much guidance from the UK administrative authorities and others. There is a desperate need for assistance in this matter beyond that currently being provided. This is recognised by the UK Environmental Law Association (UKELA) report on the state of environmental law in the UK,53 and by the Department for Environment, Food and Rural Affairs (DEFRA).54 Such support is not being provided in the current academic literature. As shown in this chapter, if possible, the rules and their application should be certain, and predictable. This alone would be enough to justify seeking a solution to the ‘crisis of interpretation’ present in relation to environmental offences. In order to assess fully the potential successes of the solution proposed, however, it is necessary to explain why this problem needs to be resolved specifically in the context of criminal sanctions imposed as a response to environmental damage to land. There are four key strands to this discussion. Firstly, there is the fact that environmental law has been, and to a large extent still is, perceived as being an ‘immature’ area of law. Secondly, there is widespread dissatisfaction within the wider legal and business community. Thirdly, the relationship between law and science demands that the legal reasoning being employed is coherent and principled. 53 UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Legislation in 2011: Is There a Case for Reform? Interim Report’ (London, UKELA, King’s College London and Cardiff University, 2012) and UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Law in 2011–2012: Is There a Case for Legislative Reform’ (London, UKELA, Kings College London and Cardiff University 2012). 54 DEFRA, ‘Biodiversity 2020: a Strategy for England’s Wildlife and Ecosystem Services’ (London, DEFRA, 2011).

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Fourthly, solving the problem of interpretation will help meet the challenges that administrative complexity brings.

A. Perception of Immaturity Why must the problem be solved from a practical perspective? Environmental law, because of the haphazardness with which much of its provisions are drafted and applied, appears immature. It is not considered in a favourable light by the business and wider legal community55 and is a difficult subject to study and understand. According to Dryzek: ‘Environmental issues do not present themselves in well-defined boxes’.56 This problem, Long Martello and Jasanoff highlight, is compounded by the conflict between global and local governance.57 Fisher and others have made a very detailed study of the problems in understanding environmental law.58 Their conclusion highlights not only the problems of studying environmental law, but also of looking at harm in this area: We identify four particular issues that have given rise to these challenges: the speed and scale of legal/regulatory change, the interdisciplinary nature of the subject, the heavy reliance in environmental law on a diverse range of governance arrangements and the multi-jurisdictional nature of the subject.59

From the outset this results in insecurities in those applying and studying environmental law. It pushes environmental law into a ‘ghetto’. Worse, as de Sadeleer highlights: Lack of time and means, the complexity and changeability of the questions to be addressed, pressure from lobbies, lack of interest in legal questions—these difficulties are giving rise to a proliferation of specific laws edited in haste and littered with gaps and contradictions, whose duration dwindles in direct proportion to their mediocrity. The need to adopt new legislation often rests on a permanent state of reluctance to apply existing legislation. Thus, environmental regimes in most countries are teeming with hundreds of laws whose effectiveness leaves a great deal to be desired, owing to their precarious and confused nature.60

The difficulties inherent in environmental law springing from the nature of the issues involved have led to mediocre law. The ‘lack of interest in legal questions’ is particularly of note. 55 UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Legislation in 2011’ (n 53) [2.5]. 56 J Dryzek, Politics of the Earth (Oxford, Oxford University Press, 2005) 8–9. 57 S Long Martello and M Jasanoff, ‘Introduction: Globalization and Environmental Governance’ in S Long Martello and M Jasanoff, Earthly Politics: Local and Global Environmental Governance (Cambridge, MA, MIT Press, 2004) 3. 58 E Fisher et al, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213. 59 ibid, abstract. 60 N de Sadeleer, ‘Environmental Principles: Modern and Post-modern Law’ in R Macrory, Principles of European Environmental Law’ (Groningen, Europa Law Publishing, 2004) 229.

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Pederson has a different approach to explaining the incoherence, and therefore the perceived immaturity, of environmental law. He considers not just the nature of the issues involved, but also the inherent biases of the decision-maker.61 ‘One reason for this prevalence of incoherence is found in the diversity of opinions and values which are at play in environmental debates’.62 His argument is based on understandings of culturally engendered bias which affects the approach of all those writing about, applying, and interpreting environmental law. This bias, he highlights, affects all areas of law, but is particularly relevant in the context of environmental law because of the broad range of values relevant to each decision.63 He goes on to argue that a solution to this, and a way of achieving the sought after maturity, is to accept incoherence and to approach the matter pragmatically.64 This means that when assessing environmental law, the writer or decisionmaker must always assess their own inherent biases, and approach the matter as though none of the values concerned are settled.65 As the law develops more values will be ‘bagged’, ie settled for now. This will assist in developing environmental law.66 The search for a consistent or single basis for environmental law is however either doomed to fail, or if achievable, unhelpful.67 In this, he agrees with Fisher and others in their approach to maturity in environmental law, which begins with a call to accept the incoherence of such law: We should … be wary of being drawn to the idea of absolutes and instead come to acknowledge the incoherence of environmental law which flows from the diversity of values and opinions embedded in the discipline. We should appreciate that such diversity can be useful in that it potentially assists us in advancing our understanding of legal concepts, regulatory choices, practices and institutions thereby aiding the maturing of the environmental law discipline.68

Given this it might be argued that any attempt to find a principled tool for interpretation too is doomed to fail because it will not be universally accepted, nor be relevant in all contexts. That much is fairly uncontroversial. This book does not claim that the approach outlined here will be universally accepted or always relevant. What it does claim however is that one of the values that should be considered as part of the process of interpretation, and as such will form part of the decision-making matrix, is certainty. Developing a more worked-out process in this way must inevitably add to the maturity of environmental law as it starts to integrate principles from other areas of law into its decisions in a context-relevant 61 OW Pederson, ‘Modest Pragmatic Lessons for a Diverse and Incoherent Environmental Law’ (2013) 33 OJLS 103. 62 ibid 104. 63 ibid 104. 64 ibid 108. 65 ibid 123. 66 ibid 123. 67 ibid 128. 68 ibid 131.

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and open way. There is no doubt that environmental law, characterised as being a ‘new’ breed of regulatory system, is perceived as immature, and as incoherent.69 Whether this immaturity is more perception than reality, there is no doubt that this perception exists, and a coherent framework for interpreting regulation would at least be useful to help remove this perception.70

B. Dissatisfaction Amongst Wider Legal and Business Community In addition to the academic writings, as mentioned above,71 UKELA, in association with King’s College London and Cardiff University in 2012 produced a wide-ranging and ambitious report which attempted to assess the state of environmental law (from the perspective of its effectiveness) in terms of coherence, transparency and integration.72 This report concluded that there are significant problems in these areas.73 Even though the purpose of the report is to assess whether these difficulties are impacting on the perceived and actual effectiveness of environmental law, as this book sees coherence as being of value in and of itself, the findings of this report, and its suggestions for a solution, are of great importance to the conclusions presented here. The report, in attempting to solve the problem of coherence, suggests that the environmental principles can, and should, play a more prominent role in our approach to interpretation of environmental regulation.74 The principles drawn on are those appearing in the EU treaties with the addition of the principle of intergenerational justice.75 The argument is not, however, that the simple inclusion of the principles within environmental regulation will solve the difficulty of interpretation. Rather, the inclusion of such principles will lead to particular legal effects which themselves would become more predictable over time.76 There is an admission that, ‘there is also skepticism about the resulting legal effects, since these might be compromised and manipulated in light of the general and ambiguous terms of such principles’.77 This links closely with the current approach to understanding these principles which in itself relies on effectiveness as a shortcut to the content of these principles.78 In other words, the UKELA report, although driven by a desire to achieve effective legislation, seems to recognise that an 69

Fisher et al, ‘Maturity and Methodology’ (n 58) abstract. AC Lin, ‘The Unifying Role of Harm in Environmental Law’ [2006] Wisconsin Law Review 897 and TS Aagaard, ‘Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy’ (2010) 95 Cornell Law Review 221. 71 See pp 52–54 in this book. 72 UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Law in 2011–2012’ (n 53) [1.1]. 73 ibid [1.7] and ch 3. 74 ibid [4.24]. 75 ibid. 76 ibid. 77 ibid. 78 See pp 172–74 in this book. 70

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approach to interpretation that is either solely purposive, or which understands the content of the environmental principles as simply explanations of environmental protection, will be insufficient to solve the problems of coherence and transparency that they identify. Crucially, the report identifies areas of great difficulty. Specifically, the interim report describes how the definition of waste and the definition of plan or project are both suffering from interpretive problems.79 In addition to increased reliance on the environmental principles to solve this, the report also outlines some more radical solutions. For example, it suggests increased administrative integration, an environmental law commission, or use of the House of Lords to ensure legislative scrutiny.80 The solutions proposed to the specific difficulties (or some of the specific difficulties) identified as part of this project do indeed go beyond taking a broader approach to interpretation to ensure effectiveness. Although the aim is effective environmental protection, there is a recognition that the way to achieve this is by achieving coherence. The UKELA project calls for further research into these potential solutions.81 In particular, it calls for research into the role that environmental principles can play whilst simultaneously acknowledging that its vague and ambiguous content will limit its ability to guide interpretation of highly specific terms within environmental regulation. What the project does not call for, and what in the author’s opinion is an omission, is the role that wider legal principles can play in meeting its aims of coherent, transparent and integrated environmental regulation. There are therefore three important conclusions to take forward from this report for the purposes of this book. Firstly, there is a recognition in this report that there are problems of interpretation in relation to environmental law, and that these problems cause difficulties in the implementation and perception of environmental law. Secondly, the project, although aiming for effective regulation, recognises that purposive approaches to interpretation may not be the best way to achieve this end. Thirdly, it does not give coherence and certainty weight in and of themselves, and in failing to link these issues to rule of law and legitimacy issues, it, arguably, fails to accord appropriate weight to other approaches to interpretation. This consideration of certainty in relation to environmental land use regulation therefore springs out of, relates to, and in many cases agrees with UKELA’s conclusions, but it also recognises the shortcomings of that report and the narrowness of its findings. The report, far from treating environmental law as a well-developed legal subject forming an integral part of our legal system, just like criminal or contract law, instead limits its frame of reference to justificatory environmental principles. Understanding these issues is necessary—but environmental law must 79 UKELA, King’s College London and Cardiff University, ‘The State of UK Environmental Law in 2011: Interim Report’ (n 53) 26–27. 80 ibid [4.29]–[4.30]. 81 ibid [4.28].

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also look out from time to time to examine its approaches by reference to more general concerns as well.

C. Interaction with Science Part of the perception of immaturity in law comes from a lack of scientific knowledge upon which to base such law. How can regulation be appropriate where the issues it is addressing are improperly understood? Such uncertainty relates not only to a difficulty in testing for problems,82 but also in identifying where we even need to be looking for the problems. The difficulty goes far beyond not knowing what level of a certain substance will cause damage.83 Taking a more principled approach to interpretation can however impact on the intractable problem that we simply do not know enough about the science concerning environmental damage. There are three key ways to address this. One is to accept that we cannot be certain in this area, and instead to develop a framework that allows for legitimate action in the face of such uncertainty, by calling on principles, and on policy. A second option is to develop a system of reliance on expertise where the legitimising factors come from the knowledge and experience of the person making the relevant decision.84 This does not decrease discretion— it increases it—but it ensures that the discretion is in the ‘right hands’. The third option would be to integrate scientific endeavour and environmental regulation under an interdisciplinary approach, both at an academic and a practical level. This represents a sort of hybrid between the two other systems. Decisions are still made by non-experts that form part of the democratic, administrative system, but their decisions are not seen as separate from the desire to accumulate scientific understanding. Rather the two will work together, with each informing the other on how to act in a particular circumstance. A call to attempt to integrate science and environmental regulation in this way has been made by McEldowney and McEldowney.85 They believe that an interdisciplinary approach will help to address the unaccustomed interaction required between law and science.86 They draw heavily on De Sadeleer’s commentary on the maturity of environmental law and the interaction with science.87 Scientific understanding is not, however, enough to remove the perception of immaturity. 82 W Wagner, ‘Commons Ignorance: The Failure of Environmental Law to Produce Needed Information on Health and the Environment’ (2004) 53 Duke Law Journal 1619, 1624. 83 ibid. 84 P Ky, ‘Qualifications, Weight of Opinion, Peer Review and Methodology: A Framework for Understanding the Evaluation of Science in Merits Review’ (2012) 24 Journal of Environmental Law 207. 85 J McEldowney and S McEldowney, ‘Science and Environmental Law: Collaboration Across the Double Helix’ (2011) 13 Environmental Law Review 169. 86 Fisher et al, ‘Maturity and Methodology’ (n 58) 248. 87 McEldowney and McEldowney, ‘Science and Environmental Law’ (n 85) 185, drawing on N de Sadeleer, ‘The Principles of Prevention and Precaution in International Law’ in M Fitzmaurice, D Ong, P Merkouris (eds), Research Handbook on International Environmental Law (Cheltenham, Edward Elgar Publishing, 2010) 184.

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The difficulty with environmental regulation is not simply that the science behind it is insufficient to provide a certain justification for action: it is that the uncertainty of justification is not tackled by other means to ensure legitimacy, such as public participation, or a basis in principle. The hybrid system, whilst in many ways appealing, fails to give the administrative decision-maker sufficient grounds for his or her decision. Where the science is uncertain, he or she will still need to make a decision, and will need to do so, very often, before the science can be made more certain. In such cases, the decision-maker will need more than fear of environmental damage and a desire to achieve set aims to help with the assessment as to what action is required. More importantly, such assistance will be required in assessing whether any action is a legitimate use of administrative discretion. Ultimately, the problem of the perception of environmental law as immature, and as lacking in direction, and the problem of a lack of knowledge, cannot be solved if we remain wedded to an approach which relies on effectiveness as the sole, or main, criteria for good regulation. If we continue to characterise principled approaches to interpretation as representing a means to effectiveness, rather than as important in and of themselves, no progress can be made. Instead, our approach should shift to one based on principled legal reasoning, reasoning which can operate in the face of uncertainty, and which can then, in turn, produce the legal certainty required.

D. Tackling the Problem of Administrative Complexity Finally, and perhaps most importantly, a more stable and predictable system for interpreting environmental law is required to help meet the challenges introduced by regulatory and administrative complexity. Both Fisher88 and Orts89 in their description of such challenges begin from the premise that environmental law, as it stands, suffers from an inability to competently account for the administrative complexity and ambiguity to which such regulation gives rise. The essence of their argument is that delegation of complex decision-making to administrators without a democratic mandate is a problem for legitimate regulation. This problem is compounded by the sheer volume of environmental regulation; its often complex legal structures; the myriad of types of environmental regulation; and the lack of expert help for its enforcers. Furthermore, scientific uncertainty interacts with the different layers of decision-making to make the law difficult to predict and uncertain. These problems call for, amongst other things, a consistent yet specific approach to interpretation, an approach which takes account of the precise circumstances of a particular regulatory intervention, but which draws on a stable understanding of legal reasoning.

88 89

E Fisher, Risk: Regulation and Administrative Constitutionalism (Oxford, Hart Publishing, 2010). EW Orts, ‘Reflexive Environmental Law’ (1995) 89 Northwestern University Law Review 1227.

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Orts90 is, without doubt, concerned with the effectiveness of environmental regulation. For example, he critiques ‘conventional environmental regulation [on the grounds that it] has not proven especially effective’.91 He is also conscious of the legitimacy ‘crisis’ that is engendered by some types of regulation.92 He recognises the difficulties that arise in applying highly complex and multi-layered environmental regulation: ‘[a]s more and more rules and regulations endeavor to solve increasingly complex social issues, the very magnitude of the substantive law itself becomes a problem’.93 The proliferation of such law is in itself a problem. It is not a problem just because of scale. It is a problem because each piece of legislation is in itself difficult to understand.94 When such legislation interacts, the problem increases exponentially. More significant however is Orts’ recognition that: A second systemic problem concerns not cognitive operational difficulties, but normative ones. The expansion of substantive command-and-control occurs by (1) legislating increasing numbers of detailed statutes and, at the same time, (2) delegating increasing discretion to administrative agencies. This legal expansion increases the separation of lawmaking from the democratic procedures that contribute to the legitimacy of the system.95

This mirrors Fisher’s argument that environmental law and its analysis must look to questions of administrative constitutionalism within a framework of increased certainty and predictability. The arguments of both of these authors show that there is a need to increase the legitimacy of environmental regulation by improving interpretation. Improved, legitimate interpretation by the administrative authorities and courts tasked with such a role will increase the legitimacy of their interventions. If environmental law has indeed given rise to a crisis of legitimacy, then analysis of that law must attempt to increase legitimacy. One way of doing this is to rely on an approach that is firmly rooted in well-established legal principles.

IV. Conclusions It has been established that we do need a solution to the problem of uncertainty in interpretation. This area of law is not only beset with uncertainty, it is hindered in its ability to integrate into the rest of UK law; marginalised in a ghetto of unprincipled legal reasoning; and desperate to find a solution to real problems without 90 91 92 93 94 95

ibid. ibid 1231. ibid 1259. ibid 1258. ibid 1258. ibid 1258.

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consideration of how this impacts upon our legal system and its coherence. It is important that strong efforts are put into dragging environmental law out of this ghetto. The best way to do this is to ensure that interpretation of rules is done on the basis of a clear framework, and that this framework includes well-defined and contextualised legal principles that can be balanced against each other. The remainder of this book will demonstrate how this framework for legitimate interpretation can help theoretically and, equally as importantly, practically.

4 Waste, Nature Conservation and Contaminated Land: The Offences This chapter gives a brief synopsis of the regimes being considered in this book in order to facilitate a clear understanding of the case law discussed in chapter five.

I. Waste The waste controls consist primarily of the Waste Framework Directive 20081 (WFD 2008), the Waste (England and Wales) Regulations 20112 and the Environmental Protection Act 1990 (EPA 1990), Part II. The national legislation transposes the requirements of the WFD 2008 into domestic law. The criminal offences are governed for the most part by the EPA 1990. The workings of the waste provisions as a whole can only be understood by reference to the WFD 2008 itself however.3 The WFD 2008 not only defines waste but also establishes the mandatory waste hierarchy and calls on Member States to deal with waste in accordance with this hierarchy. The hierarchy is described by the European Commission as ‘the cornerstone of European waste policies and legislation’.4 The EPA 1990 establishes the offences relating to waste and the duty of care that fall on waste handlers. The link between the EPA 1990 and the WFD 2008 lies in the notion of ‘controlled waste’. The EPA 1990 relies on the WFD 2008 to 1 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives [2008] OJ L312/3. The European Commission, at the time of writing, has recently adopted a legislation proposal as a review to the waste legislation. See European Commission, ‘Proposal for a Directive of the European Parliament and of the Council amending Directives 2008/98/EC on waste, 94/62/EC on packaging and packaging waste, 1999/31/EC on the landfill of waste, 2000/53/EC on end-of-life vehicles, 2006/66/EC on batteries and accumulators and waste batteries and accumulators, and 2012/19/EU on waste electrical and electronic equipment’, 2 July 2014, accessible at http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52014PC 0397&from=EN. The proposal contains potentially significant changes in terms of waste lifecycle, but makes little change to the central definition of waste. 2 SI 2011/988. 3 WFD 2008, Art 4. 4 European Commission, ‘Guidance on the Interpretation of Key Provisions of Directive 2008/98/ EC’ (Luxembourg, Office for Official Publications of the European Communities, 2012), accessible at http://ec.europa.eu/environment/waste/framework/pdf/guidance_doc.pdf, [3].

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determine the scope of the offences that it establishes. The EPA 1990 also creates the system of waste management licences.5 This system is of relevance here only in so far as the offences in section 33 of the EPA 1990 are committed if there is no licence in place for the deposit of the controlled waste. The EPA 1990 therefore to an extent transposes the requirements of the WFD 2008. The WFD 2008 is however also directly transposed by the Waste (England and Wales) Regulations 2011. These regulations are mainly concerned with the establishment of waste management systems. The responsibility for liability under the waste regime remains firmly with the EPA 1990. It is important to understand that the waste regime as a whole does far more than punish those who do not deal with waste in a responsible manner, and extends to an attempt to deal with waste as a resource in such a way as to prevent the production of waste at all. A successful waste regime is one which ensures that no waste is created, not one which ensures that those who deal irresponsibly with their waste are punished.6 Nevertheless, the offences in the EPA 1990 are an important aspect of the regime since it is the threat of the offence that pushes waste producers and holders into the waste licensing system in the first place. The operation of the offence is dependent on a definition of waste designed to serve a multitude of purposes, and this has resulted in highly complex case law. The primary offence considered here is that of ‘unauthorised or harmful deposit … of waste’ which is contained in section 33(1)(a) of the EPA 1990. This section specifies that depositing controlled waste, or knowingly causing or knowingly permitting such a deposit in, on or under land without a licence is an offence. This does not however apply to household waste within the curtilage of a domestic property (EPA 1990, section 33(2)). If these acts are done in an emergency there will be a defence (EPA 1990, section 33(7)(c)). Similarly, if all reasonable precautions and due diligence are taken to avoid committing the offence, there will be a defence (EPA 1990, section 33(7)(a)). Committing the offence can lead to a fine, imprisonment, or both (EPA 1990, section 33(8)). Under section 33A of the EPA 1990, the offender can also be required to pay the enforcing authority the costs of investigating the offence as well as any enforcement costs. They can also be required to pay clean-up costs under section 33B of the EPA 1990. The section 33(1)(a) offence therefore depends, primarily, on the existence of controlled waste. This requires examination of Article 3(1) of the WFD 2008 which specifies that waste is any ‘substance or object which the holder discards or intends or is required to discard’. The notion of ‘discard’ is crucial. There is non-binding guidance to assist in the interpretation of these terms provided by the Department for Environment, Food and Rural Affairs (DEFRA) and

5

EPA 1990, ss 35–44. E Scotford, ‘The New Waste Directive—Trying to Do it All … an Early Assessment’ (2009) 11 Environmental Law Review 75, 79. 6

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the Environment Agency.7 The ultimate responsibility for interpreting the term ‘waste’ rests however with the European Court of Justice (ECJ). It has determined that the definition of waste cannot be clearly set out in advance by reference to, for example, a list of wastes, but rather depends on the circumstances of the individual case.8 It has maintained a subjective approach to the definition of waste,9 with the addition of some objective criteria designed to help achieve this subjective definition.10 Nevertheless, ‘the test of intention is inherently subjective and therefore difficult to apply in practice’.11 The complexities and flaws in this case law are discussed below, but the basic position as it stands is as follows. Firstly, waste status is not determined by the economic value of a substance.12 There may be a market for the substance but this does not mean that it cannot be waste. Secondly, just because a substance has undergone a recovery or disposal operation already it does not mean that it is not waste, unless it meets with the end of waste criteria in Article 6 of the WFD 2008. Thirdly, there is a crucial distinction to be drawn between by-products, which are not waste, and production residues, which are. This distinction is determined according to Article 5 of the WFD 2008.13 Fourthly, although certain products might be categorised as waste on the subjective test, they are nonetheless excluded from the definition of waste by virtue of Article 2 of the WFD 2008. Such substances include land in situ, uncontaminated soil excavated in the course of a construction operation and destined for certain use on the same site, and some agricultural materials. Finally, in cases of doubt, the ECJ has tended to interpret the provisions broadly in order to ensure that the objective of environmental protection has been achieved.14 Once it has been established that the substance or material in question is indeed controlled waste, the other elements of the offence must be demonstrated. Primarily this requires that there has been a ‘deposit’ of waste. This will be interpreted in accordance with sub-sections 11 and 12 of section 33 of the EPA 1990 which clarify that ‘deposit’ will include the listed operations included in the WFD 2008 but is not restricted to this list. Some guidance has been provided by the courts 7 DEFRA, ‘Guidance on the Legal Definition of Waste and its Application’ (London, DEFRA, 2012) accessible at www.defra.gov.uk/publications/files/pb13813-waste-legal-def-guide.pdf, and in relation to end-of-waste status, see Environment Agency, at www.environment-agency.gov.uk/business/ sectors/124299.aspx. 8 Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer and Vereniging Dorpsbelang Hees, Stichting Werkgroep Weurt and Vereniging Stedelijk Leefmilieu Nijmegen v Directeur van de dienst Milieu en Water van de provincie Gelderland [2000] ECR I-04475, [51] and [64] (ARCO Chemie); and Case C-133/12 Brady v Environmental Protection Agency, 3 October 2013 (not yet published). 9 See I Cheyne and M Purdue, ‘Fitting Definition to Purpose: the Search for a Satisfactory Definition of Waste’ (1995) 7 Journal of Environmental Law 149, 165 and Cases C-206/88 and C-207/88 Criminal proceedings against G Vessoso and G Zanetti [1990] ECR I-01461, [12] and [13]. 10 Cheyne and Purdue, ‘Fitting Definition to Purpose’ (n 9) 151. 11 ibid. 12 Joined Cases C-304/94, C-330/04, C-342/94 and C-224/95 Criminal Proceedings against Euro Tombesi [1997] ECR I-03561, [54]. 13 Brady v Environmental Protection Agency (n 8). 14 ARCO Chemie (n 8) [3].

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on the meaning of deposit. It appears that material can certainly be re-deposited by a second individual such that more than one person can be guilty of the offence in relation to a single substance if it is handled by both of them. Not all second movements of waste will however constitute deposits, as is clear from Milton Keynes DC v Fuller and McVeigh.15 The term must be interpreted broadly and in accordance with ‘everyday speech’ (per Waite LJ in Scott v Westminster City Council).16 The offence can also be committed by knowingly permitting a deposit of controlled waste without a licence. Although the case law on this is not detailed, it is likely that, along with the ‘knowingly permitted’ branch of contaminated land, the meaning of these terms will be determined along the same lines as National Rivers Authority v Yorkshire Water17 and R (Crest Nicholson Residential Ltd) v Secretary of State for Environment, Food, and Rural Affairs.18 In addition to the offences in the EPA 1990, it is also an offence to operate a waste facility (ie to carry out a waste recovery or disposal operation) without a licence under regulation 38 of the Environmental Permitting (England and Wales) Regulations 2010.19 The precise relationship between this and the EPA 1990 will depend on whether the ‘deposit’ in section 33(1)(a), for example, also constitutes a waste operation; it is very likely to given that Waste Operation D1 in the WFD 2008 is ‘deposit in or onto land’. It is always possible that the two terms be interpreted differently, in which case there may not be total overlap, but it is highly likely that the section 33(1)(a) offence will also be a regulation 38 offence. It will be a matter of prosecutorial practice as to which offence is used, but the relevant case law, as things stand, considers section 33(1)(a) not regulation 38.

II. Contaminated Land20 The contaminated land provisions are contained in the EPA 1990, Part IIA and were introduced in the Environment Act 1995 on the basis of the ‘Paying for Our Past’21 consultation document and the ‘Framework for Contaminated Land’22 paper. The provisions of the statute itself are heavily supplemented by the recently 15

Milton Keynes v Fuller and McVeigh [2011] EWHC 1967 (Admin), [2011] Env LR 31. Scott v Westminster City Council [1995] RTR 327 (CA), 331K. 17 National Rivers Authority v Yorkshire Water Services Ltd [1995] 1 AC 444 (HL). 18 R (Crest Nicholson) v Secretary of State for the Environment [2010] EWHC 1561 (Admin), [2011] Env LR 1. 19 SI 2010/695. 20 For a more detailed explanation of the operation of this regime, see E Lochery (the author, published as Lochery), ‘Does the Contaminated Land Regime Impose Stewardship Obligations on Owners of Land’, LLM thesis, University of Dundee. 21 Department of the Environment, ‘Paying for Our Past’ (London, Department of the Environment, 1994). 22 Department of the Environment, ‘Framework for Contaminated Land: Outcome of the Government’s Policies Review and Conclusions from the Consultation Paper Paying for our Past’ (London, Department of the Environment, 1994). 16

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updated binding statutory guidance issued by DEFRA.23 The guidance must be considered by the enforcing authority in applying the regime, and therefore is itself crucial to the interpretation of the regime.24 The regime has not been extensively used with 144 of 746 identified sites having been remediated by March 2007.25 It does however form an important background to the planning system in particular.26 Local authorities have a duty to inspect the land in their local area to identify contaminated land27 and must draw up inspection strategies to assist them in this.28 Land is contaminated where there is significant real or potential harm,29 or significant real or potential pollution of water.30 Harm is defined in section 78A(4) of the EPA 1990 as, ‘harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property’.31 Harm will be significant where it meets the criteria relevant to the particular receptor being harmed. The guidance contains detailed information as to when harm will be significant in relation to human receptors, including, for example, a list of diseases which would always be considered significant in terms of harmfulness.32 For other receptors—ecological systems, and property—significant harm is determined by references to tables one and two.33 Ecological system receptors are only relevant for the purposes of the regime if there is an existing designation under the nature conservation provisions in place. As far as property is concerned, the regime considers livestock and other domestic animals as well as buildings, crops and timber etc. In both cases the guidance calls for the local authority to assess whether the harm is substantial or will result in substantial or long-term change. The guidance also provides assistance in assessing when a risk will be sufficiently significant for the second limb of the definition of harm to be met. Again human receptors are dealt with in the main body of the text of section 4 whereas ecological system and property receptors are considered in the third columns of tables one and two.34 Here, and elsewhere in the guidance, the coalition

23 DEFRA, ‘Environmental Protection Act 1990: Part 2A—Contaminated Land Statutory Guidance’ (London, HMSO, 2012). See also E Lees, ‘The Contaminated Land Regime: New Guidance and a New Philosophy?’ (2012) 14 Environmental Law Review 267. 24 EPA 1990, ss 78A(2), (5), (6), 78B(2), 78E(5), 78F(6), 78P(2)(b), 78Q(6); and 78W. 25 Environment Agency, ‘Reporting the Evidence: Dealing with Contaminated Land in England and Wales—A Review of Progress from 2000–2007 with Part 2A of the Environmental Protection Act’ (Bristol, Environment Agency, 2009) 3. 26 90% of contamination is dealt with through the planning system. ibid 6. 27 EPA 1990, s 78B(1). 28 DEFRA, ‘Part 2A—Contaminated Land Statutory Guidance’ (n 23) 6 at [2.4]. 29 EPA 1990, s 78A(2)(a). 30 EPA 1990, s 78A(2)(b). 31 EPA 1990, s 78A(4). See DEFRA, ‘Part 2A—Contaminated Land Statutory Guidance’ (n 23) 17–29. 32 DEFRA, ‘Part 2A—Contaminated Land Statutory Guidance’ (n 23) 18 at [4.5]. 33 ibid 24–25. 34 ibid.

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government’s approach to risk assessment is in evidence. The approach taken relies heavily on attempting to find authoritative scientific evidence and thus may well be difficult to apply.35 Nonetheless, if the relevant receptor-harm pathway exists, the local authority will use its reasonable judgment to determine that the land in question is contaminated. Once land has been identified as contaminated land, under section 78B(3) of the EPA 1990, the enforcing authority, ie either the local authority or in the case of special sites, the Environment Agency, must give notice of the identification to anyone who appears to be an ‘appropriate person’, to the owner of the land and to occupiers. The enforcing authority must then require remediation of the contaminated land, as specified in section 78E of the EPA 1990 and should serve a remediation notice on any ‘appropriate person’.36 If there is more than one ‘appropriate person’, then the remediation notice must specify the proportion of remediation for which each will be responsible.37 The enforcing agency may only require by way of remediation that which, bearing in mind the costs involved and the seriousness of the harm or potential harm,38 it considers reasonable.39 The EPA 1990 does not provide extensive guidance on this point. Section 78E(4) of the EPA 1990 does specify that the remediation action must be reasonable, but the majority of the information on what can be included in the remediation notice is found in the guidance40 and over time the courts will begin to provide more assistance on what reasonable means here.41 In practical terms, a remediation notice can require the appropriate person to take steps for assessing the levels of contamination in the land;42 treating that contamination;43 and continuing to monitor the levels of contamination.44 Often the remediation required will involve disrupting the pathway between a source of contamination and the receptor being harmed or at risk of harm, and the removal of the source of contamination. The remediation notice must also be based on the standard of remediation that is to be reached under the regime. The standard to which land must be remediated is that the land must no longer be considered as contaminated under its current use.45 This is the standard which would be reached by using the ‘best practicable

35

Lees, ‘New Guidance and a New Philosophy?’ (n 23) 272. EPA 1990, s 78E(1). 37 EPA 1990, s 78E(3). 38 EPA 1990, s 78E(4)(a) and (b). 39 EPA 1990, s 78E(4). 40 EPA 1990, s 78E(5). DEFRA, ‘Part 2A—Contaminated Land Statutory Guidance’ (n 23) 34–40. 41 See R (Redland Minerals Ltd) v Secretary of State for Environment, Food and Rural Affairs [2010] EWHC 913 (Admin), [2011] Env LR 2 where Sales J confirms that it is reasonable to demand remediation in the short term given the seriousness of the harm being caused even though there is little evidence over what a long-term approach to remediation might entail, [19]–[20]. 42 DEFRA, ‘Part 2A—Contaminated Land Statutory Guidance’ (n 23) 35 at [6.6]. 43 ibid 35 at [6.7]. 44 ibid 35 at [6.8]. 45 ibid 36 at [6.17]. The previous standard of ‘suitable for use’ is no longer focused on in the new guidance. 36

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technique’ (BPT) for remediation.46 Current use is determined by the enforcing authority by reference to the planning permissions that exists over the land. The current use is any use which would be lawful under the current planning permission along with any likely informal recreational use of the land.47 The actions required of the ‘appropriate person’ to be carried out under a remediation notice can involve remediating land belonging to another. This means that the owner or occupier of that land for the time being will have to grant permission to the appropriate person, the enforcing authority, or contractors etc to enter into and carry out works upon their land (EPA 1990, section 78G). Under section 78F of the EPA 1990 the ‘appropriate person’ on whom a remediation notice will be served will primarily be the person who caused or knowingly permitted the substance in question to be in, under or on the land48 (Class A persons). If such a person cannot be found after reasonable enquiry, the owner or occupier of the land for the time being49 (Class B persons) will be the appropriate person. There can be more than one appropriate person. The enforcing agency, under section 78G of the EPA 1990, must use reasonable endeavours to consult every person who is the owner or occupier of the land and must also make reasonable endeavours to consult the person on whom the notice is to be served before the notice is served. It is then an offence for the person on whom the remediation notice is served to fail to comply with that notice.50 The penalty for such a failure will be a fine.51 The enforcing authority can also bring High Court proceedings if it appears that the fine will be an insufficient sanction.52 Once land is remediated, it is no longer considered to be contaminated land and the provisions of the regime are no longer relevant. If there is a change of use, however, the land may become contaminated again. The criminal offence is therefore constituted by a failure to comply with a remediation notice, but the pre-requisite for such liability is a valid remediation notice. This demands (a) the existence of contaminated land (significant harm or risk of significant harm); (b) that the notice be served on an appropriate person (caused or knowingly permitted; owner or occupier for the time being); and (c) that the actions contained within that notice are considered reasonable. There has been little by way of interpretation of these terms albeit that ‘knowingly permitted’ has been interpreted broadly in R (Crest Nicholson) v Secretary of State for Environment.53 ‘Caused’ has been interpreted rather more narrowly in R (National

46 47 48 49 50 51 52 53

ibid 37 at [6.22]. ibid 9 at [3.5]. EPA 1990, s 78F(2). EPA 1990, s 78F(4). EPA 1990, s 78M. EPA 1990, s 78M(4). EPA 1990, s 78M(5). At n 18.

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Grid Gas) v Environment Agency.54 The rest of the central elements of the regime are lacking in detailed attention by the courts. In addition, the Environmental Liability Directive (ELD)55 establishes the further offence of causing damage to land through contaminating substances in regulation 4(5) of the Environmental Damage (Prevention and Remediation) Regulations 200956 (EDR 2009): ‘[e]nvironmental damage to land means contamination of land … that results in a significant risk of adverse effects on human health’. Therefore a court is again required to interpret ‘significant risk of adverse effects’. Evidence from the nature conservation provisions suggests that the courts will struggle with the meaning of significant.

III. Nature Conservation Before explaining the particular aspects of the nature conservation regime being looked at here, that is, the relevant offences, it is useful to ‘site’ these provisions within the overall framework of nature protection in the UK.57 There are essentially two levels of control—protection of individual species, and protection of particular areas. These controls operate in a patchwork fashion, are ‘notoriously fragmented’,58 ‘complex and opaque’,59 and come from a variety of statutory sources. The focus here is on habitats’ protection. A review of the different types of designation that can be put in place over land is enough to show the complexity here: sites of special scientific interest (SSSIs),60 national nature reserves,61 special areas of conservation (SACs), special protection areas (SPAs), Ramsar sites etc.62 This book focuses on SSSIs, SPAs and SACs. It considers the regulatory provisions contained within the Wildlife and Countryside Act 1981 (WCA 1981), as amended by the Countryside and Rights of Way Act 2000, and the Conservation of Habitats and Species Regulations 201063 54

R (National Grid Gas) v Environment Agency [2007] UKHL 30, [2007] 3 All ER 877. Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56. 56 SI 2009/153. 57 For an overview of nature conservation law, see CT Reid, Nature Conservation Law, 3rd edn (London, W Green, 2009); K Cook, Wildlife Law: Conservation and Biodiversity (London, Cameron May, 2004); and C Rodgers, The Law of Nature Conservation (Oxford, Oxford University Press, 2013). 58 CT Reid, ‘The Privatisation of Biodiversity? Possible New Approaches to Nature Conservation Law in the UK’ (2011) 23 Journal of Environmental Law 203, 206. 59 R (Royal Society for the Protection of Birds) v Secretary of State for Environment Food and Rural Affairs [2014] EWHC 1645 (Admin), [5]. 60 Wildlife and Countryside Act 1981 (WCA 1981), s 28. 61 WCA 1981, s 35. 62 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar (Iran), 2 February 1971, UN Treaty Series No 14583, as amended by the Paris Protocol, 3 December 1982 and Regina Amendments, 28 May 1987. 63 SI 2010/490. 55

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(CHSR 2010) and the EDR 2009. It must also look directly to the EU measures in the Wild Birds Directive64 (WBD), the Habitats Directive65 (HD) and the ELD. These provisions establish controls regarding activities on designated land. A framework is established whereby Natural England can, in consultation with owners and occupiers of designated land, ensure that any activities that take place on that land are consistent with the objectives of the SSSI and SAC/SPA system.66 Often these involve the imposition of certain conditions onto the performance of activities on the land, as well as active management of the critical feature to ensure that it remains part of our ‘common heritage’ for the benefit of current and future generations. The existence of a management agreement or management scheme is the bedrock of the conservation system in that it is designed to encourage a consensual approach to maintenance of the site. The primary task given to Natural England in the DEFRA guidance on the SSSI system, for example, requires that ‘English Nature [now Natural England] should develop mutually supportive and constructive relationships with land managers and with public bodies, to secure positive management’.67 The offences considered here are not the central feature of the regime, but the backbone of the regime designed to support a voluntary approach to management of our natural heritage. This is reflected in Natural England’s enforcement policy: ‘[o]ur key focus is on helping people to comply, whereas enforcement action is seen as a last resort’.68 In this respect, the regime operates in a similar fashion to the contaminated land provisions. Criminal sanctions are used as a means to ensure compliance with a negotiated position. More than one offence is established by these provisions. Fundamentally the book considers ‘the’ offence that consists of causing harm to designated land under European or national law controls where that offence is committed by an owner or occupier of that land either through carrying out a damaging operation, or by failing to prevent damage. As with the contaminated land provisions, there are two categories of terms to be interpreted: the terms of the offence itself, and those terms which establish the pre-conditions to the imposition of liability following breach of, for example, a management notice. Nevertheless, the approach to interpretation outlined in this book can be useful in relation to both types of term.

64 Directive 2009/147/EC of the European Parliament and Council of 30 November 2009 on the conservation of wild birds [2010] OJ L20/7. 65 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. 66 Natural England, ‘Sites of Special Scientific Interest (SSSI): a Notification Strategy for England’ (London, Natural England, 2011) 1; DEFRA, as cited by Natural England in explaining its notification strategy, concludes that the purpose of the system is: ‘to safeguard, for present and future generations, the diversity and geographic range of habitats, species, and geological and physiographical features, including the full range of natural and semi-natural ecosystems and of important geological and physiographical phenomena throughout England’, see DEFRA, ‘Sites of Special Scientific Interest: Encouraging Positive Partnerships—Code of Guidance’ (London, DEFRA, 2003) 10. 67 ibid 7. 68 Natural England, ‘Compliance and Enforcement Position’ (London, Natural England, 2011) [4].

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There are two categories of sites operating within the provisions discussed here. Firstly, there are SSSIs where the site is not designated under any other regime. These sites will therefore be governed solely by national law as expressed in the WCA 1981. Secondly, there are SSSIs which are also SPAs or SACs under the WBD. In outlining the offences relevant to these two categories there is inevitably a degree of overlap between the myriad legal controls. This means that a degree of repetition in this explanation is necessary. Such repetition however is needed for clarity.

A. National Law Designation The first type of site is where there is only an SSSI designation in place. SSSIs are designated under section 28 of the WCA 1981 by Natural England. Natural England has provided guidance as to its approach to such designation,69 although the definition of an SSSI is provided by the statute itself. Sites will be designated as SSSIs where Natural England is of the opinion that the site is ‘of special interest by reason of any of its flora, fauna, or geographical or physical features’.70 Natural England makes use of the Joint Nature Conservation Committee guidelines in making such an assessment.71 Once this decision has been made, Natural England must notify the local planning authority, the owners and occupiers of the land and the Secretary of State of the designation.72 This notification will explain the reason behind the designation, ie the flora, fauna or geographical or physical features on the land (referred to here as the ‘critical feature’), and will also contain Natural England’s opinion on the management of the land.73 The consequences for the owners and occupiers of designated land are outlined in section 28E of the WCA 1981. The owner must not ‘carry out, or cause or permit to be carried out, on that land any operation specified in the notification’ without the consent of Natural England unless the operation forms part of a management agreement, scheme or notice. Operations will be specified in the notification if they are considered by Natural England to be operations likely to damage the special interest on the site which justified the notification in the first place.74 Management schemes are covered by section 28(J) of the WCA 1981. The notice of the scheme will be served on any owner or occupier of the designated land but only following consultation with them.75

69

Natural England, ‘Sites of Special Scientific Interest’ (n 66). WCA 1981, s 28(1). 71 Nature Conservancy Council, ‘Guidelines for Selection of Biological SSSIs’ (Nature Conservancy Council, 1989–1998 edn), accessible at http://jncc.defra.gov.uk/page-2303#download, and Nature Conservancy Council, ‘Guidelines for Selection of Earth Sciences SSSIs’ (Nature Conservancy Council, 1977–1993 edn), accessible at http://jncc.defra.gov.uk/pdf/earthscienceSSSI.pdf. 72 WCA 1981, s 28(1). 73 WCA 1981, s 28(4). 74 WCA 1981, s 28(4)(b). 75 WCA 1981, s 28J(3). 70

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If the owner or occupier does not comply with the management scheme, notice is given under section 28K of the WCA 1981 if this failure means that the critical feature on the land is ‘being inadequately conserved or restored’.76 The management notice will require the owner/occupier to carry out specific work on the land.77 An owner or occupier may make an appeal against the management notice under section 28L of the WCA 1981 to the Secretary of State. Natural England is also enabled by section 28N of the WCA 1981 to compulsorily purchase an SSSI if it cannot enter into a management agreement with the owner of that land or if a management agreement has been breached.78 The enforcement of these provisions is ensured by the creation of five key offences. Firstly, if the owner or occupier of the land carries out a specified activity covered by section 28E of the WCA 1981 without with consent of Natural England, they will be guilty of an offence under section 28P(1) unless (a) they had been granted planning permission to carry it out, or (b) they were acting in an emergency.79 Thus it is important that ‘likely to damage’ be interpreted consistently as a clear arbiter as to what can be included in the management notice. ‘Operation’ must also be interpreted consistently. Secondly, under section 28P(6) of the WCA 1981, if a person ‘intentionally or recklessly destroys, damages or disturbs’ the critical feature on the land, and they knew this was within an SSSI (therefore covering owners and occupiers since these people are most likely to know that the site is an SSSI), they will be guilty of an offence. Again, ‘destroys, damages or disturbs requires interpretation’, as does the mens rea requirement. Thirdly, under section 28P(8) of the WCA 1981 failure to comply with a management notice is an offence. Fourthly, section 31(5) of the WCA 1981 renders a failure to comply with a remediation notice following damage to the site an offence. Finally, if the owner fails to inform Natural England of a sale of his land he will be guilty of an offence under section 28Q(4) of the WCA 1981. Committal of any of these offences can lead to a fine and, under section 31 of the WCA 1981, to an order to carry our operations on the site with a view to ‘restoring the site of special scientific interest to its former condition’. Thus in relation to land which is designated as an SSSI, the WCA 1981 itself establishes certain offences. This book focuses on the first of these offences in demonstrating existing uncertainty and in finding a solution to this uncertainty.

B. EU Law Designation In addition to the national law provisions, there is also extensive regulation of nature conservation under EU law. There are two types of sites—those designated under either the old or the new WBD and those designated under the HD, 76 77 78 79

WCA 1981, s 28K(1)(b). WCA 1981, s 28K(3). WCA 1981, s 28N(2). WCA 1981, s 28P(4).

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although both sites will now be controlled by the overriding provisions of the HD. ‘Habitats’ sites, known as SACs are designated following an adoption of the site as a site of community importance under Article 4(2) of the HD. Such sites form part of the Natura 2000 network.80 SPAs, designated under the WBD also form part of this network. A register of such sites is compiled by the Secretary of State under regulation 13 of the CHSR 2010. Notice of the designation must be given to local planning authorities and owners and occupiers of land within the site under regulation 15. Where the land is designated as an SSSI but is also an SPA or SAC under the European legislation (a ‘European site’), stricter controls apply in order to ensure that the site is protected to the level required by the European provisions. Thus although the site will be an SSSI, the operation of the rules in the WCA 1981 is influenced by the duty on the enforcing authority to ensure that the rules are used in a way which meets the requirements of the relevant directive (CHSR 2010, regulation 9(1)). In order to ensure this the CHSR 2010 also introduce different provisions and offences for the purpose of protecting European sites. The operation of these regulations has been altered by the amendments made in 2012.81 The position as it now stands is that under regulation 19, the relevant authority can amend the notification of designation as an SSSI if it later becomes a European site to ensure that the list of operations in that notification includes operations which ‘appear[s] … likely to damage’ the special interest feature (CHSR 2010, regulation 19(2)(a)). As a result, the offence in sections 28E and 28P(1) of the WCA 1981 will be committed in relation to the site if such an operation is carried out. It is possible, however, that in light of the purposive approach espoused by the ECJ, ‘likely to damage’ will be interpreted in a broader fashion in relation to the CHSR 2010 than in relation to the national provisions in the WCA 1981.82 Once the operation has been specified, regulation 21 provides that where there an application for consent to carry out such an operation is made, the relevant authority must assess whether the operation is ‘likely to have a significant effect’ on the special interest, and if so, then it cannot be carried out if it will ‘adversely affect the integrity of the site’. There is no such specific test for the grant of consent for specified operations on SSSIs which are not also European sites. The statute simply requires an assessment of the environmental impact of the operation. The protection is therefore similar in procedure to that for pure SSSIs, but is likely to be somewhat stronger. In addition to this ‘normal’ procedure, the CHSR 2010 also permit the relevant authority to produce a special nature conservation order for European sites.83 80 European Commission, ‘Natura 2000 Network’, accessible at http://ec.europa.eu/environment/ nature/natura2000/index_en.htm. 81 The Conservation of Habitats and Species (Amendment) Regulations 2012, SI 2012/1927. 82 Rodgers, The Law of Nature Conservation (n 57) 89. Contrast North Uist Fisheries v Secretary of State for Scotland 1992 SC 33, 1992 SLT 333 and Case C-127/02 Landelijke Vereniging to Behold van deer Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserrij [2004] ECR I-7405 (Waddenzee). 83 CHSR 2010, reg 25.

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Such an order will specify operations which if carried out are ‘likely’ to destroy or damage the special interest on the site (regulation 25). Such an order can relate to operations which are to be carried out either on the site itself or elsewhere84 and it can also relate to operations to be carried out by third parties, not just the owner or occupier of the designated land.85 Under regulation 26 the authority can then serve a stop notice in relation to such operations. If such a stop notice is produced, the relevant operation cannot be carried out without consent. Under regulation 26(8) an offence will be committed if the operation is carried out without consent. Regulation 27 outlines the procedure for giving consent to the carrying out of such an operation and the test is the same as that in regulation 21, ie the operation cannot ‘adversely affect the integrity of the site’. The protection under the special nature conservation order is therefore somewhat broader than that above, but the fundamental principle of a requirement of consent is the same. Finally, in relation to both types of designated sites, there are further potential offences in the EDR 2009. The regulations, which are designed to transpose the ELD, are concerned with remedying serious environmental damage which takes place after March 2009.86 These regulations establish further offences for damage to critical features on designated land (such as destruction of that feature which had caused the land to be designated as a site worthy of protection—a particular species, for example), but the aim of the regulations is ‘to ensure action is taken to put damage right rather than to penalise those responsible’.87 The EDR 2009 establish two categories of offence—offences of strict liability, and offences which require fault. There are also two different definitions of damage—environmental damage88 and damage to protected species or habitats.89 The latter of these is obviously relevant here, but the definition of ‘environmental damage’ extends to protected habitats also. The strict liability standard for environmental damage applies where the damage is caused as a result of activities listed in Annex III of the ELD—schedule 2 in the EDR 2009. The negligence standard will apply where the damage is not caused by an operation in schedule 2, but by some other operation. The EDR 2009 apply only to those carrying out economic activities on the relevant land,90 and therefore does not apply to domestic residential properties.91 In addition, for the most part, only damage caused by certain specific activities will constitute 84

CHSR 2010, reg 25(1). CHSR 2010, reg 26(3). 86 Anon, ‘The Environmental Damage Regulations’ (2009) 16 Health and Safety at Work 1, 2. See also, Anon, ‘Current Topics (July)’ [2009] Journal of Planning and Environmental Law 819; and Anon, ‘Polluter Pays under New Environmental Liability Regime’ (2009) 16 Health and Safety at Work 8. 87 DEFRA, ‘The Environmental Damage (Prevention and Remediation) Regulations 2009— Guidance for England and Wales’ (London, DEFRA, 2009) 7 at [1.9]. 88 EDR 2009, reg 4. 89 EDR 2009, reg 5. 90 EDR 2009, reg 2(1). 91 DEFRA, ‘The Environmental Damage (Prevention and Remediation) Regulations 2009’ (n 87) 13 at [2.15]. 85

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environmental damage for the purpose of the regulations,92 and the majority of the actions specified are those which already require a licence.93 Five key offences are created by the EDR 2009. The regulations create offences for failing to ‘take all practicable steps to prevent damage’, or preventing further damage, to a designated SSSI where the damage ‘adversely affects the integrity of the site’.94 There are also offences for failing to notify the enforcing authority of such imminent or further damage. The test for European sites is slightly different. Here, the test for environmental damage is whether the activity ‘has a significant adverse effect on reaching or maintaining the favourable conservation status of the protected species or natural habitat’.95 This offence is therefore slightly different from that which applies to SSSIs although it does appear that designation as an SSSI takes precedence. There are two further offences in failing to comply with a notice issued to prevent damage or further damage and a failure to comply with a remediation notice. The committal of any of these offences can lead to a fine or to imprisonment. The enforcing authority, at least in the context of SSSIs and European sites, will be Natural England, unless the activity is one which requires an environmental permit in which case responsibility for the site will shift to the Environment Agency. The regulations are an additional layer of regulation, rather than an alternative regulation, and as such does not sit entirely comfortably with the nature conservations provisions as they stand. There is much crossover, but DEFRA guidance suggests that the ELD provisions take precedence over the WCA 1981 offences. ‘Significant adverse effect’, ‘adversely affects the integrity’, ‘likely to damage’, ‘likely to have a significant effect’, ‘destroys, damages or disturbs’ and ‘recklessly’ will all require interpretation by the courts. Hitherto such assessment has largely taken place in the context of applications for planning permission and it is possible that the approach may be different where the court is faced with questions of criminal liability. Natural England’s enforcement policy is also instructive for understanding the true operation of these offences. The general policy pursued by Natural England is that, firstly, prevention is better than cure, and secondly that voluntary co-operation is preferable to the imposition of mandatory civil or criminal sanctions.96 As a result the numbers of prosecutions is low and Natural England will aim to work together with the owner or occupier of a designated site in order to ensure that the critical feature is maintained and protected.97 In the four years from Natural England’s foundation to 2011 only six prosecutions have been brought in relation to SSSIs.98 The level of punishment imposed following an offence is flexible. 92

EDR 2009, reg 5(1). DEFRA (n 87) 13 at [2.12]. 94 EDR 2009, sch 1, para (4)(2). 95 CHSR 2010, sch 1, para 1(1). 96 Natural England, ‘Compliance and Enforcement Position’ (n 68) 2–3. 97 Natural England, ‘Enforcement Guidance’ (London, Natural England, 2011) 6 at [5.1]. 98 Natural England, ‘Protecting England’s Natural Treasures—Sites of Special Scientific Interest (London, Natural England, 2011) 19. 93

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Natural England’s guidance states that, in determining the sanction sought, ‘[t]he impact or harm caused by an offence on the natural environment (typically habitats or species) is the predominant factor, followed by a range of aggravating and mitigating factors but starting with the level of culpability’.99 In all cases however ‘[f]ull restoration of environmental harm is the most important outcome of enforcement’.100

99 100

Natural England, ‘Enforcement Guidance’ (n 97) 9 at [5.5]. ibid [5.7].

5 Uncertainty in Interpretation I. Uncertainty in Practice The purpose of this section is to demonstrate the existence of uncertainty, uncertainty which is both endemic and self-perpetuating, in the approach of domestic courts to interpretation of these criminal offences. Examples of such incoherence in the case law are examined. This chapter also highlights one cause of this uncertainty. This cause is a (reluctant at times) focus on trying to achieve the aims of legislation when the meaning of that legislation is unclear. Such a purposive approach is ironically both the cause, and the result, of uncertainty. The deeper causes of this approach are discussed in the next chapter, but here the focus is on demonstrating the existence of incoherence, uncertainty, and effectivenessdriven interpretation. There is considerably more case law in relation to the waste offences than the other regimes. Discussion of this regime therefore forms the bulk of the assessment, but the issues raised are also of relevance to the other regimes, and what case law there is, reveals the same trends. Considering these relevantly similar offences at the same time allows for patterns to emerge in a way that examining them alone does not. There is consistency in the types of terms that the courts struggle to interpret. Not all have been the subject of case law to date, but the themes outlined in this review suggest that these terms are likely to be central to the existence of liability, and to be interpreted broadly on the basis of the aim of the relevant provision. This leads to uncertainty. These terms are the ‘triggers’ for liability under the regimes. The key terms are: for the waste regime, ‘discard’ (the definition of controlled waste) and ‘deposit’ (the actus reus of the offence in section 33(1)(a) of the Environmental Protection Act 1990 (EPA 1990)); for the contaminated land regime: ‘harm’ or ‘significant risk of significant harm’ (the definition of contaminated land), ‘reasonable’ (the content of the remediation notice, and therefore the acts that must be carried out by the relevant person if they are not to commit a criminal offence) and ‘cause’, ‘knowingly permit’ and ‘occupier’ (the definition of the relationship between the contaminating substance and the potentially appropriate person) and under the Environmental Liability Directive (ELD), ‘significant risk of adverse effects’; and for the nature conservation provisions, ‘operations’ (the term outlining what Natural England is able to prohibit), ‘likely to damage’, ‘adversely affect the integrity’, ‘significant adverse effect’ and ‘adversely effects the

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integrity’ (the terms which allow the enforcing authority to assess whether or not the particular operation requires authorisation and whether such authorisation will be granted and which define ‘damage’ under the ELD) and ‘occupier’ (the definition of the relationship between the land and the person carrying out the operation). Each of these terms is critical to the criminal offence that may be committed under the regimes.

A. Waste In relation to waste the case law is uncertain, contradictory, vague and very difficult to apply. The risk in making a detailed review of the domestic case law is that it becomes simply a catalogue of individual circumstances.1 There are many such catalogues already in existence in the shape of guidance and the academic analysis of the waste legislation. This discussion aims instead to distil some common themes from the case law and to assess the consequences of these commonalities for the coherence of our regulatory system. The themes that emerge are as follows. Firstly, in attempting both to meet the aims of the legislation, and to be flexible and responsive to individual circumstances, the courts employ a case-by-case approach to decision-making. In some cases they appear to be mandated to do so by the European Court of Justice (ECJ) jurisprudence: in others the approach is derived from domestic policy. Whatever the motivation behind this approach, it leads to unpredictability. Secondly, the courts have demonstrated a tendency to abdicate responsibility for providing certainty to either administrative guidance, or to administrative bodies in making assessments regarding enforcement action. Thirdly, there is a demonstrable reluctance in many cases to articulate clearly the reasons for a decision. This contributes to uncertainty in that the reasoning of the court is left opaque, but is also a response to that uncertainty in that it prevents excessive appeals of court decisions. Finally, the result of this is that the outcomes of some of the cases are hard to reconcile. Where the court repeats its statement that decisions must be made on a case-by-case basis, and is unwilling to commit to clear and explicit reasoning, such apparently contradictory decisions are acceptable as a matter of legal precedent. As a basis upon which to give legal advice or to plan economic activity however, they are wholly inadequate. These themes will be examined in turn.

(i) Case-by-Case Decision-Making Decisions are made on a case-by-case basis, resulting in uncertainty. It is important to note here that the point is not that decisions are case-by-case in terms of 1 Consider for example, A Samuels, ‘The Legal Concept of Waste’ (2010) Journal of Planning and Environmental Law 1391; A Ogley, ‘A Wasted Opportunity?’ (2011) Journal of Planning and Environmental Law 10; DN Pocklington, The Law of Waste Management, 2nd edn (London, Sweet and Maxwell, 2011); I Cheyne and M Purdue, ‘Fitting Definition to Purpose: the Search for a Satisfactory Definition of Waste’ (1995) 7 Journal of Environmental Law 149; and I Cheyne ‘The Definition of Waste in EC law’ (2002) 14 Journal of Environmental Law 62.

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their assessment of the facts. This is obviously necessary. Rather, the definitions of terms are assessed afresh on a case-by-case basis, by reference to statutory provisions interpreted in a purposive way, with little assessment as to the relationship of that definition with earlier case law. Despite apparent distaste for this approach,2 it is very clearly followed by domestic courts.3 This can be seen when these key trigger terms in section 33(1)(a) of the EPA 1990 are examined. Firstly, the offence requires that waste be defined. The courts analyse whether a substance meets the definition of waste on a case-by-case basis. The definition relied on is no longer linguistically meaningful as a result, but is instead a shortcut to a range of undefined policy objectives. The levels of discretion involved turn what ought to be a question of interpretation into one of discretion and guesswork. Whatever legitimacy might have been gained from an effective application of the legislative provisions is lost in the haphazardness of the resulting approach. The starting point for this approach is R (OSS Group Ltd) v Environment Agency4 where Carnwath LJ’s acceptance of the vagaries of the ECJ jurisprudence,5 and the necessity of incorporating these into domestic law,6 (following Mayer Parry)7 signalled a shift in domestic jurisprudence. Carnwath LJ stated that the ECJ had ‘assert[ed] that the decision must be made in the light of “all the circumstances”’.8 The assessment as to whether a substance is waste will be based on ‘a series of objective indicators derived from the policy of the Directive’.9 This approach requires that ‘the national court [make] a value judgment on the facts of the particular case in the light of those indicators’.10 Thus, the domestic court highlights that there cannot be clear categories of substances that will be waste, rather the test must always come back to the notion of discard, and it must do so afresh in each individual case. The subsequent jurisprudence is replete with examples of such a case-by-case approach. One such is Environment Agency v Thorn International UK.11 This case concerned the movements and storage of pre-sorted electrical goods. The question was whether functioning electrical goods remained waste even once selected as still operational, or whether they had reached end-of-waste status.12 The judgment was given prior to the Waste Framework Directive 2008 (WFD 2008) and the inclusion of end-of-waste status criteria in Article 6, but the general approach will still be of interest. The court, in assessing the approach of the Divisional

2 3 4 5 6 7 8 9 10 11 12

See pp 93–102 in this book. Castle Cement v Environment Agency [2001] EWHC Admin 224, [2001] Env LR 46, [21] and [37]. R (OSS Group Ltd) v Environment Agency [2007] EWCA Civ 611, [2008] Env LR 8. ibid [39], [43] and [55]. ibid [67]. Case C-444/00 R (Mayer Parry Recycling Ltd) v Environment Agency [2003] ECR I-06163. R (OSS Group) v Environment Agency (n 4) [40]. ibid [59]. ibid. Environment Agency v Thorn International UK [2008] EWHC 2595 (Admin), [2009] Env LR 1. ibid [1].

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Court, found that the justices were entitled to conclude that the process of selection meant that the goods were no longer waste. Moses LJ reasoned that: It seems to be suggested by the Environment Agency that every time a consumer no longer wishes to keep such an item it, by operation of principle of law consistent with the Directive, automatically becomes waste because the consumer no longer wants it. In my view, that is far too extreme a view and far too stringent a rule … In my view, the justices were entitled to find that the items in question, even if they should have been regarded as waste at an earlier stage, were not by the time they had become selected by Thorn. None of the purposes of the Directive are achieved by so regarding them. Thorn regarded them as capable of reuse with some repair and refurbishment. The mere fact that that which in one form is undoubtedly waste remains waste until its character is changed by a process of recycling does not establish a rule of law that any item which requires repair or refurbishment is waste until that process is concluded. As the European Court of Justice pointed out at paragraph 97 in ARCO, and as the Court of Appeal endorsed at paragraph 59 in OSS, it depends on all the circumstances.13

All attempts to develop clear principles are rejected. Instead, everything depends on all the circumstances. This was confirmed in Environment Agency v Inglenorth14 where May J refused to answer broad questions concerning whether excavated material with a planned reuse would always be waste. Rather, the judge preferred simply to consider the facts before him without providing more detailed guidance.15 Even where the courts have the opportunity to increase levels of predictability, they are not taking it. The continuing applicability of the case-by-case approach, even where very similar fact situations have been decided previously, was demonstrated by R v W.16 Here McCombe J, once again faced with the question of reuse of excavated soil, highlighted that, ‘all would depend on the facts of the individual case’.17 The fact-specific nature of the application of the rules to individual circumstances was also discussed at length in the recent decision in R v Ezeemo.18 This case was concerned primarily with the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989; Regulation 259/93 on Transfrontier Shipments of Waste; Regulations 1013/2006 on Shipments of Waste and the Transfrontier Shipment of Waste (Amendment) Regulations 2007.19 It discussed the movement of functional electrical goods from the UK to Nigeria. In order to assess the relevance of these regulations to the facts, the court was required to grapple with the definition of waste as applicable to the functional electrical goods.20 The specific question asked was whether the

13 14 15 16 17 18 19 20

ibid [26]. Environment Agency v Inglenorth [2009] EWHC 670 (Admin), [2009] Env LR 10. ibid [13]. R v W [2010] EWCA Crim 927, [2011] 3 All ER 691. ibid [38]. R v Ezeemo [2012] EWCA Crim 2064, [2013] Env LR 15. SI 2007/1711. R v Ezeemo (n 18) [8(1)].

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materials once selected had ceased to be waste by virtue of the fact that they had been assessed as still working (a similar question to that asked in Thorn).21,22 Pitchford LJ highlighted that, ‘the question whether it has changed its status is a question of objective fact’,23 and that as a result the jury must make an assessment as to status as waste in each individual case. The uncertainty that this results in is clearly expressed in the judgment of Pitchford LJ. His Lordship stated that there is: [A] consistent line of authority in which it has been held that once a substance or object has been discarded (and has therefore become waste) the question whether it has changed its status is one of objective fact … It will be seen that in composing suitable directions to the jury the scope for contradiction and confusion to which Carnwath LJ drew attention in OSS immediately arises. How is the trial judge to direct the jury as to the meaning of those terms when they do not at first sight mean what they say? The answer, it seems to us, is that the trial judge must adapt his directions to the jury so as to eliminate the apparent contradictions between the words used and their purposeful interpretation.24

This statement is a complete expression of everything that is wrong with the current approach to this area of law, and with the case-by-case analysis that is undertaken in particular. The term discard has become totally divorced from its linguistic meaning in an attempt, in individual cases, to ensure that environmental protection is achieved, by changing the meaning of that term on a caseby-case basis. Similarly, in relation to the meaning of ‘deposit’, the domestic courts, although sometimes reluctant to eschew a linguistic approach to interpretation, have striven to ensure that the aims of the legislation are met on a case-by-case basis, as Milton Keynes DC v Fuller and McVeigh confirmed.25 In that case it was made clear that, ‘each case has to be decided to the particular facts that are raised and found’.26 The Fuller approach was cited with approval in Thames Water Utilities Ltd v Bromley Magistrates’ Court by Gross LJ.27 Thus both in relation to the discard test, and to the meaning of the word deposit, the courts are highlighting the flexibility that must be employed in ascertaining their meaning and applicability depending on the factual circumstances of the case. This flexibility was increased by the court’s conclusion in Fuller,28 which again was given support in Thames Water,29 that the meaning of deposit is a question

21

Environment Agency v Thorn International UK (n 11). R v Ezeemo (n 18) [52]. 23 ibid [51]. 24 ibid [51]. 25 Milton Keynes v Fuller and McVeigh [2011] EWHC 1967 (Admin), [2011] Env LR 31. 26 ibid [40]. 27 Thames Water Utilities Ltd v Bromley Magistrates’ Court and the Environment Agency [2013] EWHC 472 (Admin), [2013] Env LR 25, [26]. 28 Milton Keynes DC v Fuller and McVeigh (n 25) [39]. 29 Thames Water Utilities Ltd v Bromley Magistrates’ Court (n 27). 22

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of fact not law.30 This means that judicial review of an inferior court decision will take place on the basis of a ‘reasonableness assessment’ rather than as a matter of correctness.31 In essence this means that there is flexibility for each court in assessing the meaning of the offence, and there will be little by way of overarching guidance. Whether or not the court was bound to reach this conclusion on the basis of Cozens v Brutus32 is a matter open to debate33 but the net result will be that ‘deposit’, like ‘discard’, will be interpreted on a case-by-case basis, reducing certainty and predictability. Again, the problem is not that, as is usual with the common law method, the definition is assessed in relation to the particular facts, it is that the definition is re-defined on a case-by-case basis. The application of the law to the facts changes from case to case: the definition of the key terms should not so alter. There is no strong conception of precedent in relation to the definitions of key terms.

(ii) Abdication of Responsibility for Providing Certainty The case-by-case approach is not simply an expression of flexibility however. It is also an abdication of responsibility to provide clear guidance. Admittedly, the courts may feel bound to take the case-by-case approach, but in so doing they are failing to fulfil one of their judicial functions, ie the clarification of the law through interpretation. Recognition of this delegation of function is clear in some of these cases. For example in OSS Group, Carnwath LJ stated that, ‘however desirable it might be to have a definitive test, the ECJ has consistently declined invitations to provide one. It is not the function of the domestic court to fill the gap’.34 He went on to argue that this gap in the role performed by the judiciary should be filled by the Department for Environment, Food and Rural Affairs (DEFRA), and the Environment Agency, ‘in providing practical guidance for those affected’.35 Thus, responsibility for interpretation of the regime is removed from the courts’ shoulders and laid to rest with the administrative agencies involved. The levels of discretion available to the Environment Agency (EA) as enforcer in this area are demonstrated clearly in the comments in R v Ideal Waste Paper Co Ltd.36 The court relies on the prosecutorial discretion of the EA, and on constant communication between the EA and operators, to ensure that this area of law does not operate unfairly and in contravention of rights to fair process. The court stated that: We do not rule out the possibility of co-operation between the Environment Agency and operators in this field to the mutual benefit of the public interest and the interests 30

ibid [26]. ibid [27]. 32 Cozens v Brutus [1973] AC 853 (HOL). 33 E Lees, ‘The Meaning of “Deposit”: Thames Water v Bromley Magistrates’ Court’ (2014) 26 Journal of Environmental Law 1. 34 R (OSS Group) v Environment Agency (n 4) [67]. 35 ibid [68]. 36 R v Ideal Waste Paper Co Ltd [2011] EWCA Crim 3237, [2012] Env LR 19. 31

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of operators. In the end it is for the courts to apply the law. But we see scope for co-operation which will assist operators in knowing what they can reasonably expect to do without enforcement action being taken against them.37

The court was essentially suggesting that it shares, at least in part, the role of determining the meaning and application of the regime with enforcing agencies. The amount of discretion thus accorded to the EA is high, and, given the handsoff approach of the courts in assessing the facts of individual circumstances, there is little to control this discretion. Even if the EA does engage in the co-operation that the court suggested, the lack of control on the use of its discretion, means that there are likely to be national and sectorial variances in practice resulting, ultimately, in unpredictability. In R v W38 the court placed responsibility not on administrative bodies, but on juries who were attempting to come to a verdict in relation to the waste offences. McCombe J stated that: In a prosecution under s.33 it is a matter for the judge to determine whether the material in issue is capable of being ‘controlled waste’ within the meaning of the Act and that, if so, it is for the jury to decide whether it is in fact ‘controlled waste’.39

The subjective, discretionary elements of developing the test are therefore left to the jury, and the court is no longer obliged to determine one way or another whether, as a matter of law, the material in question meets the definition of waste. Rather, the judge takes the preliminary step only of assessing whether it might be. This abdication of responsibility to provide clear guidance goes hand in hand with the case-by-case approach to result in very high levels of uncertainty. The result of abdication of responsibility therefore is the appearance of increased reliance on administrative discretion and difficulties in controlling and holding to account, (and thus arguably, helping to legitimise) such discretion. Juries too are given an interpretive role. The need for flexibility is highlighted in the above cases. In shifting control of the definition of the term in practice onto administrative bodies, however, the case law provides no guidance or control to the detriment of both operators and regulators.

(iii) Reluctance to Articulate Reasons Even where the court comes to a clear conclusion as to whether a substance is or is not waste, there is very rarely a clear statement as to precisely what combination of facts led to the conclusion reached. For example, in R v W40 and Inglenorth41

37 38 39 40 41

ibid [47]. At n 16. ibid [13]. ibid. Environment Agency v Inglenorth (n 14).

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the courts were asked to decide whether excavated material shipped to another site to be used in construction works constituted waste. In R v W the court concluded it was waste:42 in Inglenorth it concluded that it was not.43 What precisely the difference between these two cases is was never clearly articulated.44 More than this, in OSS Group, Carnwath LJ, perhaps in despair, hinted at the pointlessness of giving reasons. He stated that there is no ‘decisive criterion’45 for discerning the holder’s intention, and that ‘any lack of clarity is inherent in the imprecision of the test which the court has declared’.46 He considered that it would be futile to make a reference to the ECJ for further clarification precisely because the whole point of the test that was being applied, as he saw it, was to be imprecise.47 Reasoning is beside the point, because it will not assist in the next case. Such frustration is understandable, but it would certainly be useful if the court would articulate more clearly the reasoning for its decision, especially in the ‘easy’ cases, in order to build up a body of principles, albeit flexible, fact-specific ones. There are said to be such ‘easy’ or central cases where a substance is clearly waste, a suggestion that, to an extent, contradicts the guidance that each case will depend on its circumstances. Nevertheless, in such cases the courts do not engage fully in the meaning of discard and its relevance to the conclusion that a particular substance is clearly waste. The problem that arises for those considering these cases is that it is hard to work out what makes such cases ‘easy’. For example, in Castle Cement, it was said that: ‘it is obvious, and is not in issue, that the original constituent substances of Cemfuel are waste’.48 In order to build up a coherent approach to making this assessment, it would be useful if in all cases the court explains what it is about the substances that means that they are ‘obviously’ waste. In Castle Cement ‘waste’ cement product was transformed into a fuel, but the production of this fuel is a manufacturing process of a sort, and in this sense the ‘waste’ products were performing the same role as raw materials. From that perspective, they are not waste. If we are to get to grips with the definition of waste, we need always to articulate precisely why a particular substance is being classed as waste, and this, in the ‘easy’ cases, is something that the courts seem reluctant to do. In articulating such reasoning care must also be taken to ensure clarity over whether the nature of the substance itself is relevant—eg whether it is a hazardous substance, or environmentally harmful etc. The tendency to rely on such aspects

42

At n 16, [39]. Environment Agency v Inglenorth (n 14) [38]. The distinction appears to be explained in Environment Agency v Inglenorth (n 14) [33]–[34], but it is difficult to determine what exactly makes the difference, beyond a need to uphold the aims of the Directive. 45 R (OSS Group Ltd) v Environment Agency (n 4) [68]. 46 ibid [69]. 47 ibid. 48 Castle Cement v Environment Agency (n 3) [15]. 43 44

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of the substance, whilst simultaneously claiming not to do so, is apparent in the case law. In Castle Cement, is was said that: ‘I would expect the question whether a substance derived from waste remains waste to depend not only on the processes involved in its production, but also on the nature of the substance itself ’.49 Authority prevented Stanley Burton J from taking this approach however, and there is too an acknowledgement of the potential dangers of relying too heavily on a ‘nature of the substance’ approach.50 The message is mixed. A similar desire to take account of the nature of the substance was also evident in OSS Group. Here, Carnwath LJ argued that: The resulting material neither had ‘the same characteristics’ as a raw material nor was ‘capable of being used in the same conditions of environmental protection’. One may infer that those are at least two of the objective factors which are regarded as relevant in deciding whether a material has ceased to be waste. However, it is difficult to understand why this point was said to be a fortiori. That term implies a logical connection (and one of degree) between those factors and the reasons given in the preceding passage for holding that a complete recovery operation was not enough. But, as already noted, that apparently turned solely on the subjective issue of intention to discard, not on objective factors which were in any way comparable with those referred to in paragraph 96. Indeed the court had earlier indicated that the environmental effect of the process was irrelevant to the issue of ‘discarding’ (ARCO para [73]).51

Once again, reliance on ‘discard’ without engagement with its meaning causes confusion. If it is the nature of the substance that makes certain decisions ‘easy’, this needs to be, but is currently not, always articulated and accepted on a consistent basis. This lack of explicit reasoning stems, in part, from a reluctance to openly contradict the jurisprudence of the ECJ. The perceived futility of providing reasons, and the fear of the consequences of so doing, is fettering the ability of the courts to provide greater certainty.

(iv) Hard to Reconcile Outcomes The net result of this is that the outcomes of cases are very difficult to reconcile. There is no reasoning in the cases to explain the differences, beyond the statement that all will depend on the individual circumstances. This can be seen most clearly in relation to two types of waste—excavated soil, and reusable white goods. As far as excavated soil and other building materials are concerned, there are three central cases—R v W,52 Inglenorth53 and R v Jones.54 In R v W there was a deposit on a farm of materials excavated in the course of constructing a hotel, largely soil and subsoil. The material was to be used as hard standing. The court concluded 49 50 51 52 53 54

ibid. ibid [16]. R (OSS Group) v Environment Agency (n 4) [46]. At n 16. Environment Agency v Inglenorth (n 14). [2011] EWCA Crim 3294, [2012] Env LR D2.

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that it was waste.55 In R v Jones, topsoil taken from A’s land to C’s land by B was considered to not necessarily be waste, despite a similar intended reuse, and the judge’s directions to the jury in the trial were therefore defective, despite reliance on R v W.56 Finally, in Inglenorth, the court concluded that material from the demolition of a greenhouse at one garden centre, taken to another garden centre, to be used as the foundation for a car park, was not waste.57 What mattered, the court argued, was its status on delivery at the second site, not what it was when it left the first. This was a different approach to that taken in either R v W or R v Jones. Thus, the position appears to be that excavated material with a clear intended reuse on delivery at the site where that use would take place is not waste, might be waste, and is waste. Whichever status it will be in any case is not clear because the reasons for the distinctions are not articulated in the cases. Similar criticisms can be made of the approach to electrical white goods which are capable of reuse but which have been disposed of (at a tip, or handed in to an electrical retailer) by the original consumer. In Thorn,58 electrical goods were handed in by the consumer and then sorted by Thorn into groups of goods which were still functioning, and ones which were not. The court concluded in that case that although the sorting in itself might not bring anything that was waste into line within the end-of-waste status definition, there was no logical reason why it had to be concluded that the goods handed in by the consumer were in fact waste at all.59 In Ezeemo60 however, where again electrical goods were sorted for functionality prior to being shipped to Nigeria, it was very clearly accepted that prior to the sorting the goods were waste.61 The relevant question was whether the sorting process took them under the banner of end-of-waste. Quite why these two cases take such differing approaches to the definition of waste is not explained. The end result of this is that it is not possible to say with any certainty whether or not a particular substance is waste, whether it has been deposited etc. In short, we do not know what the waste offences mean, and when they have been committed. This is a problem, as will be seen, that cannot be solved by pursuing the existing approach.62 It was argued in R v Ideal Waste Paper Co Ltd63 that the offence arising under the waste regime was so uncertain that there was a breach of European and common law principles regarding predictability of criminal liability.64 Pill LJ outlined the criticism of the regulation:

55 56 57 58 59 60 61 62 63 64

R v W (n 16) [39]. At n 54 [24]. Environment Agency v Inglenorth (n 14) [38]. Environment Agency v Thorn International UK (n 11). ibid [21]–[22]. R v Ezeemo (n 18). ibid [32]. See ch 6 of this book. At n 36. ibid [2].

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It is submitted [by the defendants] that … those engaged in the export of paper and other recovered commodities are unable to know before they embark upon a course of conduct whether their activities are likely to be treated as criminal or not … [T]here is no standard by which the judge can sum up for the fact-finding tribunal. It is the duty of the law to set the standard by which the jury decide the facts. A detailed legal standard is required. In this case the standard has been plucked from the air. That amounts to an abuse of process. An operator does not know whether he is breaking the law.65

The court eventually concluded that the regulations did not amount to abuse of process.66 The very fact that this question reached the Court of Appeal, and the call from the judges for the EA to work closely with operators to ensure that operators can reasonably know what to expect in terms of enforcement actions,67 shows however that uncertainty here is real, and of serious concern.

B. Contaminated Land When compared with the conclusions reached in relation to the waste regulations, a slightly more nuanced picture emerges when the case law on contaminated land is considered thanks to the lack of case law on these provisions. There has been no case law challenging a criminal sanction imposed under the regime. The focus on effectiveness is neither as blinkered, nor as prevalent, as will be seen below,68 but what case law there has been is not a model of clarity or predictability, despite some attempts to bring clear definitions to the key terms. The case law here has focused on the meaning of ‘cause’ and ‘knowingly permit’.

(i) Case-by-Case Decision-Making The slightly different attitude of the courts here might increase predictability in this area were it not for the fact that there is considerably less guidance from the courts. What guidance there is has tended to focus on particular aspects of the regime and it is clear from the survey of local authority opinions on the regime that certainty is lacking.69 The current jurisprudence does not provide an overall structure to the approach that ought to be taken by enforcing authorities, beyond, again, the prescription of certain vague aims, and a mandate that the regime should be interpreted in light of these aims. In addition, when considering contaminated land as an ongoing, rather than a historical problem, the courts will have a role to play in interpreting the ELD70 which covers environmental damage 65

ibid [21]–[25]. ibid [44]. ibid [47]. 68 See pp 96–99 in this book. 69 Environment Agency, ‘Reporting the Evidence: Dealing with Contaminated Land in England and Wales—A Review of Progress from 2000–2007 with Part 2A of the Environmental Protection Act’ (Bristol, Environment Agency, 2009). 70 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage. 66 67

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to land. The ECJ has already begun to take a highly purposive approach to these provisions,71 and given the impact that the approach to ‘discard’ has had on the national courts’ approach to ‘deposit’ in relation to waste,72 it is likely that national courts’ approach to the contaminated land provisions will, at the very least, be coloured by the teleological approach taken to the ELD. As with the waste provisions, the courts are generally unwilling to state general principles which are of application beyond an instant case. In part, this is due to the administrative context of the decisions. The decisions that there have been are judicial review actions. As such there will be a degree of deference accorded to the original decision-maker, leaving the courts unlikely to go beyond assessing whether a particular interpretation is a reasonable response to the statutory terms. The case-by-case nature of the decisions can be seen most clearly in the assessments made in R (Crest Nicholson) v Secretary of State for Environment, Food, and Rural Affairs73 and R (Redland Minerals) v Secretary of State for Environment, Food, and Rural Affairs.74 In these cases the court was required to make an assessment as to the meaning of the causation test for the purposes of section 78F of the EPA 1990 (appropriate person). In so doing, the court did not engage with issues such as standard of proof for causation, or multiple sufficient causes, etc. Rather, the court simply assessed whether, on the facts, the individuals before the court could be said to have caused the pollution to be in, on, or under the land. No broad guidance was given, despite the dearth of case law in this area.

(ii) Abdication of Responsibility It is also clear that the courts do not see it as their responsibility to ensure that the terms within the regime are interpreted by administrative bodies in a predictable and consistent way. For example, in Crest Nicholson,75 Sales J stated that ‘a common-sense approach to the causative mechanisms’ should be taken.76 What is common sense will boil down to an exercise of the administrative body’s discretion. Allowing very high levels of administrative discretion is a factor which leads to unpredictable outcomes if there is no counter-balancing control on that discretion. Sales J used the same language in Redland Minerals stating that, ‘a broad evaluative judgment on causation was required’.77 No guidance is given on how such an evaluative judgment should be carried out.

71 Case C-378/08 Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo Economico [2010] ECR 00. 72 Thames Water v Bromley Magistrates’ Court (n 27) [41]. 73 R (Crest Nicholson Residential Ltd) v Secretary of State for Environment, Food, and Rural Affairs [2010] EWHC 1561 (Admin), [2011] Env LR 1. 74 R (Redland Minerals Ltd) v Secretary of State for Environment, Food, and Rural Affairs [2010] EWHC 913 (Admin), [2011] Env LR 2. 75 R (Crest Nicholson Residential Ltd) v Secretary of State for Environment (n 73). 76 ibid [31]. 77 R (Redland Minerals Ltd) v Secretary of State (n 74) [37].

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A somewhat different deferral of responsibility was seen in R (National Grid Gas) v Environment Agency.78 In that case, Lord Neuberger, after having outlined the various arguments in favour of extended causal responsibility (to statutory successors to gas undertakers) and those against, stated that: Whether, and if so, in what circumstances and on what basis it would be right to extend the concept of polluter paying in such a way is a matter of policy for the legislature, not for the courts. The role of the courts is to interpret the relevant statutory provisions.79

This is correct, but in this particular case, in order to interpret these very scant provisions, the court needed to grapple with the polluter pays principle and its meaning. The court refused to do this, albeit that it did articulate arguments on both sides, leaving these questions of the meaning of legal principle to the legislature instead. It is entirely understandable that the court would not want to overstep its constitutional role, but that does not mean that it ought not to have engaged more deeply with what the statute actually says, and what this means in terms of the polluter pays principle. As a legal principle, interpretation of the polluter pays rule is as much a matter for the courts as it is for administration or legislature. Additionally, in Lord Scott’s judgment, there was a clear willingness to make policy choices that were by no means clear from the wording of the statute. For example, he stated that, ‘innocent owners or occupiers of land should not pay’80 even though this is precisely what the statute provides where no polluter can be found.81 Thus the abdication of responsibility to consider the meaning of the polluter pays principle is twinned with a willingness to rely on policy in a selective fashion. Going forward, it is unclear when the courts would engage with the policy of the statute and when they would not.

(iii) Reluctance to State Reasons Courts appear more willing to state reasons for a decision here than they do in the waste case law. The difficulty is not that there are no reasons given, but that the reasons do not necessarily help predict future outcomes. For example, in Redland Minerals, Sales J interpreted ‘causes’ widely as an alternative interpretation ‘would … lead to results which would be grossly unfair’.82 His Lordship did not explain why it would be grossly unfair. Similarly, Lord Scott, in National Grid Gas, stated that the statutory language here was ‘uncomplicated and easily understandable’.83 For this reason he took an apparently linguistic approach to interpretation (albeit that there was selective reliance on purpose as discussed

78

R (National Grid Gas) v Environment Agency [2007] UKHL 30, [2007] 3 All ER 877. ibid [33]. 80 ibid [21]. 81 EPA 1990, s 78F(4). See also E Lees, ‘Interpreting the Contaminated Land Regime: Should the “Polluter” Pay?’ (2012) 14 Environmental Law Review 98. 82 R (Redland Minerals Ltd) v Secretary of State (n 74) [32]. 83 R (National Grid Gas) v Environment Agency (n 78) [20]. 79

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above).84 If the language were so easily understandable however, one wonders how the question as to how to interpret these provisions reached the House of Lords. Thus reasons are given, but the types of reasons that are given are inadequate to assist the regulated and their advisors in actually predicting outcomes.

(iv) Hard to Reconcile Outcomes Finally, these factors have combined to produce results which are hard to reconcile. The outcomes in Crest Nicholson85 (which took a very broad assessment as to causation) and Circular Facilities v Sevenoaks DC86 (which interpreted knowingly permitted in a broad fashion) are difficult to reconcile with the result in National Grid Gas87 which for policy reasons, in essence, interprets these causation and permitting requirements in a narrow fashion. The outcomes do not conflict as a matter of precedent. As with the waste legislation, although the general approach is sufficiently flexible to account for the two different approaches to the legislation, the overall results are not easily reconciled. In Crest Nicholson, the developer was held to have caused contamination of the land simply as a result of failing to cover over land which was contaminated. The exposure to the weather meant that the contaminating substances washed further into the soil. This was enough to constitute causation.88 By contrast, in National Grid Gas, a statutory successor to a gas company was said to be insufficiently connected to the original polluter to constitute an appropriate person.89 Quite why Crest Nicholson’s shareholders, who like National Grid’s shareholders would have been unaware of the contamination, were not taken into account and considered relevant in the same way is not clear.90 There are policy choices being made by the courts in this area. Sometimes these choices are made explicitly; at other times they are made under the guise of common sense, fairness, and an understanding of the proper judicial role. What effect the policy choices will have, and when a court will make such a choice, is not clear. What we see, in essence, from the courts in this field also, is some commonalities, albeit that patterns are sometimes difficult to discern given the paucity of the evidence. In all cases the courts are concerned not to limit liability on the basis of uncertainty over the precise causal mechanisms involved or the precise level of knowledge that the relevant individual had. Thus problems of proof and evidence are not barriers to liability. The courts are encouraged not to find such barriers in part by a desire to ensure that the regimes are effective.

84 85 86 87 88 89 90

See p 87 in this book. R (Crest Nicholson Residential Ltd) v Secretary of State for Environment (n 73). Circular Facilities v Sevenoaks DC [2005] EWHC 865, [2005] Env LR 35 (Admin), [43]. R (National Grid Gas) v Environment Agency (n 78). R (Crest Nicholson Residential Ltd) v Secretary of State for Environment (n 73) [28]–[32]. R (National Grid Gas) v Environment Agency (n 78) [24]. ibid [31].

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C. Nature Conservation Finally, we must consider whether these themes are also evident in relation to the nature conservation provisions. The highly fragmented nature of these provisions makes it even more important to establish common themes and ideas, to identify the approach to interpretation that is currently being taken, and where the problems with this arise. The nature conservation provisions, as highlighted above, come from two key sources: the purely domestic sites of special scientific interest (SSSI) designation system, and the EU special protection areas/special areas of conservation (SPA/SAC) designation system. Both are supplemented by the ELD in the form of the Environmental Damage (Prevention and Remediation) Regulations 2009 (EDR 2009). The highly fragmented and confusing nature of this system means that we must turn to case law analysis of these provisions for assistance in interpretation and to try and find some predictability in the operation of these provisions. The themes outlined in relation to the other areas of law again are in evidence here. There have been no decided cases in relation to the EDR 2009, and few relevant decisions on either the Wildlife and Countryside Act 1981 (WCA 1981) or the Conservation of Habitats and Species Regulations 2010 (CHSR 2010). As with the contaminated land provisions therefore, it is difficult to discern consistent patterns. What case law there is however shows a tendency to take a similar approach to that used under the waste provisions, leading to the same consequences. As far as SSSIs are concerned, the case law has been largely concerned with the compliance or otherwise of the provisions with the European Convention on Human Rights (ECHR).91 The decisions in Trailer & Marina,92 North Uist Fisheries,93 Southern Water v Conservancy Council,94 and Sweet v Secretary of State for the Environment95 are nevertheless useful here. The case law on the SPA/SAC system has also been focused on the administrative action taking place, rather than on criminal sanctions for breach. The primary area of contention has been in relation to planning permissions given allowing ‘plans or projects’ which may impact on the conservation status.96 Although this case law is not directly relevant to the interpretation of offences, it may nonetheless be useful to allow an assessment as to the likely approach to interpretation of ‘operation’. The decision in Feeney v Secretary of State for Transport considered the interpretation of the CHSR 91 See for example, Aggregate Industries UK Ltd v English Nature [2002] EWHC 908 (Admin), [2003] Env LR 3 and Fisher v English Nature [2004] EWCA Civ 663, [2004] 4 All ER 861. 92 Trailer & Marina (Leven) Ltd v Secretary of State [2004] EWCA Civ 1580, [2005] 1 WLR 1267. 93 North Uist Fisheries v Secretary of State for Scotland 1992 SC 33, 1992 SLT 333. 94 Southern Water Authority v Nature Conservancy Council [1992] 1 WLR 775, [1992] 3 All ER 481 (HL). 95 Sweet v Secretary of State for the Environment (1989) 1 JEL 245 (QBD). 96 Case C-127/02 Landelijke Vereniging to Behold van deer Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserrij [2004] ECR I-7405 (Waddenzee).

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2010 in relation to European sites.97 The key terms that this book has focused on are ‘operations’, ‘likely to damage’ and ‘adverse effects’, and ‘occupier’. Thus case law, which considers the impact on environmental protection, albeit from the perspective of planning permission, is still useful. As with the contaminated land provisions however, the differing focus of the case law makes the trends more difficult to discern.

(i) Case-by-Case Decision-Making Nonetheless, the courts very clearly make their decisions on a case-by-case basis. There is no attempt to create specific rules applicable in multiple situations. In Long v Monmouthshire CC98 for example, Davies J stated that, ‘it is a question of fact and degree, each case will turn on its own particular facts’.99 In making this assessment the judge referred to the decisions in Gillespie100 and Catt.101 These cases are concerned with an assessment as to whether remedial measures forming one of the conditions of planning permission mean that it is possible to conclude that the project does not adversely affect the environment. They demonstrate that the usual approach here will be one which relies very clearly on the individual circumstances of each case. This approach was confirmed in Akester.102 Owen J accepted that the definition of project is ‘inevitably fact sensitive’.103 The interpretation of the term operation will also likely take place on a case-by-case basis with little clear guidance coming from the courts beyond a call to ensure that the conservation objectives of the Habitats’ Directive and the national legislation are met. Such a conclusion is confirmed by Schiemann J’s approach in Sweet.104 His Lordship concluded there that the term ‘operation’ should be interpreted broadly, and that it was not a term of art.105 The judge therefore eschewed the extensive case law concerning the definition of such a term in a planning context in favour of the case-by-case approach. Similarly, in Southern Water Authority,106 the court gave helpful guidance as to the meaning of occupier stating that a sufficient degree of occupation is required so that the person is in a ‘comprehensive and stable relationship’ with the land.107 This assessment is made on a case-by-case basis however. Questions of stability become questions of justifiable liability. It is not a wholly objective or predictable question, but rather one which will depend on all the facts and is simply a question of degree. The guidance provided by the court is not necessarily predictable in its effect. 97 98 99 100 101 102 103 104 105 106 107

Feeney v Secretary of State for Transport [2013] EWHC 1238 (Admin), [2013] Env LR 34. Long v Monmouthshire County Council [2012] EWHC 3130. ibid [81]. Gillespie v First Secretary of State [2003] EWCA Civ 400, [2003] Env LR 30 at [37], [46] and [49]. R (Catt) v Brighton and Hove City Council [2007] EWCA Civ 298, [2007] Env LR 32 at [26]. R (Akester) v DEFRA [2010] EWHC 232 (Admin), [2010] Env LR 33. ibid [71]. Sweet v Secretary of State for the Environment (n 95). Ibid 250. Southern Water Authority v Nature Conservancy Council (n 94). ibid 782.

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(ii) Abdication of Responsibility Once again there is a degree of deference to the original decision-maker in terms of interpretation of the regime. It is clear that Natural England’s assessments as to the likely conservation impacts, for example, will usually be given precedence in a decision, rather than the court drawing its own conclusions. Although in E.ON Developments v King’s Lynn & West Norfolk Council108 the planning inspector conducting the appeal did not show deference to Natural England’s judgment,109 such an approach does not represent the bulk of the case law. This was highlighted in Elliott v Secretary of State for Communities and Local Government110 and in Morge111 and Akester.112 In Feeney v Secretary of State for Transport too, the court made clear that the possibility of an adverse effect is a matter of judgment for the local authority.113 The court’s job may be to interpret the terms of the statutory material, but where a high degree of deference is given to conclusions as to whether these terms are met, it is arguable that in fact the court is also deferring to the local authority with regards to the meaning of the terms themselves. The line is certainly a thin one. Again, the exact circumstances of these cases and the questions before the court mean that it is difficult to assess the extent to which the courts would also defer to Natural England to determine the interpretation of the criminal offences within the regime. The courts’ attitude is one of deference to the expert body in this field. Reliance on the enforcing authority was also apparent in North Uist Fisheries.114 It stated that, ‘it is important to bear in mind that … the satisfaction of statutory description is a matter entrusted to the first respondent’.115 This is a correct statement, both of the statutory position, and of the correct judicial role, but it is important always to be vigilant to ensure that it is not used as a screen behind which the courts can hide, to allow them to not interpret the terms of the statute, but to defer to the administrative body in its own assessment as to what the statutory provisions mean.

(iii) Reluctance to Provide Reasons In terms of willingness to provide reasons for a decision, the context makes this somewhat difficult to assess since very often the court is charged with citing reasons given by a planning inspector to assess the validity of that decision, and not provide an interpretation of the statute of their own accord. Akester itself does interpret the 108

E.ON UK Development Ltd v King’s Lynn and West Norfolk Council [2012] PAD 29. ibid [134]. 110 Elliott v Secretary of State for Communities and Local Government [2012] EWHC 1574, [2013] Env LR 5 [51]–[52]. 111 R (Morge) v Hampshire CC [2011] UKSC 2, [2011] 1 All ER 744 [29]. 112 R (Akester) v DEFRA (n 102) [105]. 113 Feeney v Oxford City Council [2011] EWHC 2699 Admin, [2013] Env LR 5 at [28]. See also RSPB v DEFRA [2014] EWHC 1645 (Admin). 114 North Uist Fisheries v Secretary of State for Scotland (n 93). 115 ibid 39. 109

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statutory provisions,116 but relies so heavily on the guidance given by the ECJ in Waddenzee117 that this decision does not really provide any information beyond that derived from that case. The position is similar in Feeney.118 In Long v Monmouthshire CC119 however, there is an indication that the court is not willing to engage with certain arguments where the evidence before it is scant with no discussion as to why it can so quickly be dismissed. It had been argued that the planning conditions imposed were uncertain. The judge did not engage with this argument, and instead simply stated that no evidence had been produced to demonstrate this.120 There was no engagement with what uncertainty might mean in this context.

(iv) Hard to Reconcile Outcomes Finally, there is the question as to whether or not the above approaches are producing decisions that are difficult to reconcile. The key cases to consider here are Akester121 and R (Edwards) v Environment Agency (No 2).122 In Akester the question was whether there needed to be an assessment of the effects of the grant of a licence to upgrade the Isle of Wight ferry. It was held that such an assessment was needed.123 Thus, in terms of the criminal offence, it would have been a criminal offence for the ferry operator to carry out this operation without the relevant permission if specified in a notification because the operation was likely to have a significant effect on the conservation objectives of the site. It would be possible for this to be specified as a prohibited operation. By contrast in Edwards the adoption of tyres as fuel was concluded not to be a project or plan.124 The change of fuel did not meet the test—the change of boat did. The explanation of the difference given in Akester is very unclear. It seems that it was because of the ‘risk of significant adverse effects on the protected site’.125 Thus, the court is assessing the term ‘plan or project’ (and by analogy, ‘operation’) on the basis of the conservation objectives of the provisions. An activity is more likely to be considered to be a ‘plan or project’ if in fact it is more likely to have conservation impacts. This introduces a significant degree of uncertainty into the plan or project test, and thus into the scope of Natural England’s discretion. If the courts were to take an analogous approach to the definition of the offence in section 28 of the WCA 1981, it is clear that a deeply unsatisfactory situation would emerge.

116 117 118 119 120 121 122 123 124 125

R (Akester) v DEFRA (n 102). At n 96. Feeney v Secretary of State for Transport (n 97) At n 98. ibid [77]. R (Akester) v DEFRA (n 102). R (Edwards) v Environment Agency (No 2) [2008] UKHL 22, [2008] Env LR 34. R (Akester) v DEFRA (n 102) [81]. R (Edwards) v Environment Agency (No 2) (n 122) [51]–[52]. R (Akester) v DEFRA (n 102) [80].

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D. Conclusions What conclusions can be drawn from this analysis? The approach of the courts is not producing certainty and predictability of outcomes. In part this is due to a highly deferential approach to the original decision-maker; in part it is a reliance on a case-by-case approach twinned with a reluctance to give reasons for any particular decision. The result is outcomes that are difficult to reconcile. In short, it is impossible from the case law to state with confidence what would happen in an individual case. By examining the contaminated land regimes and nature conservation provisions along the same themes as the waste jurisprudence, it becomes easier to identify characteristics of judicial decision-making in this area. These characteristics are the immediate cause of uncertainty.

II. The Teleological Approach in the Courts The analysis of the case law has demonstrated that uncertainty exists in the interpretation of the statutory offences by the domestic courts. The immediate cause of this uncertainty is the teleological approach to interpretation that the courts are taking. Why the courts take this approach is discussed in the next chapter. This section will demonstrate, however, that the courts themselves display dissatisfaction with this approach and see it as a precursor to uncertainty.

A. Waste (i) Purposive Interpretation The case law is dominated by effectiveness arguments to the point where many decisions are largely incoherent, as domestic courts, clearly deeply frustrated with the overriding approach mandated by the ECJ, have repeatedly highlighted.126 For example, although criticised for being value-laden, the highly purposive, policybased approach was followed in R (OSS Group) v Environment Agency: Although the Court continues to play lip-service to the ‘discarding’ test, in practice it subordinates the subjective question implicit in that definition, to a series of objective indicators derived from the policy of the Directive. What is required from the national court is a value judgment on the facts of the particular case in the light of those indicators.127

This approach has also led to ‘deposit’ being interpreted broadly to ensure that the regime achieves as much coverage as possible. This approach was demonstrated in Thames Waste Management v Surrey CC: ‘although clearly “deposit” is a putting 126 127

See pp 95–96 in this book. At n 4 [59].

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down, it has also … to be construed, unless the context otherwise required, in a broad sense’.128 Domestic courts are driven by a desire to achieve the goal of environmental protection, and in doing so have, arguably, expanded the meaning of ‘deposit’. The result does not necessarily sit comfortably with the statutory language. This could lead, as it has with ‘discard’, to a situation of high levels of discretion. Such a tendency in relation to ‘deposit’ was also clearly articulated in Thames Water v Bromley Magistrates’ Court.129 Gross LJ highlighted the pressure that the domestic courts are under from the ECJ to take a purposive approach: We were not addressed more generally on the relationship between the waste directive and the Act nor on the distinction between the words ‘discard’ and ‘deposit’, so caution is called for before applying these observations of the ECJ to s.33(1)(a) of the Act. Nonetheless, these observations are instructive as to the policy underlying the directive in question, relating to the same field as the Act.130

Even though there is a distinction between ‘discard’ and ‘deposit’, Gross LJ reasoned that the purposive approach adopted by the ECJ in relation to the former should, to a certain extent, be adopted by domestic courts in relation to the latter. This is instructive because it shows the reach of this pressure. Domestic courts are taking a teleological approach even without the scope of European regulation. The weight of this pressure was addressed head on in Environment Agency v Inglenorth131 where May J cited the approach of the Stockport justices in the earlier hearing in the case: From our understanding of the authorities, we interpreted the meaning of the word ‘discard’ as equivalent to ‘get rid of ’, but understood the law to be that the words ‘waste’ and ‘discard’ should not be interpreted restrictively, and should be interpreted in the light of the aims of the Directive. These are the protection of human health and the environment, against the harmful effects caused by the collection, transport, treatment, storage and tipping of waste, and Community Policy on the environment, which aims at a high level of protection, based on a precautionary principle and a principle that preventative action should be taken.132

The comments in relation to both the precautionary principle and the preventive principle are worthy of note. The precautionary principle is used to justify an approach which takes the word ‘discard’ beyond its ordinary meaning. The content of the precautionary principle, and what it might actually mean in each case, is not fully examined. Rather it is used as a justificatory ‘given’ in relation to the waste regime. The abandonment of principled reasoning in this way is to be regretted.

128 129 130 131 132

Thames Waste Management v Surrey County Council [1997] Env LR 148 [155]–[156]. At n 27. ibid [41]. At n 14. ibid [10].

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(ii) Dissatisfaction with the Purposive Approach There is conflict here however. The national courts, although mandated to take a purposive approach, on occasion, express their reluctance to do so. For example, in Thames Water v Bromley Magistrates’ Court133 the central question was whether or not ‘deposit’ ought to be interpreted to include accidental spillages or escapes. The case concerned the escape of material from Thames Water’s sewers. The spillage was accidental, and therefore, Thames argued, it was not covered by this particular offence. In addressing this issue the judge began by highlighting that, as was made clear in Milton Keynes DC v Fuller and McVeigh,134 the meaning of this word is based on its meaning in plain English, not on its aim.135 It is not however easy to answer questions concerning the meaning of the term just by looking it up in the dictionary.136 His Lordship then cited positively comments from Waite LJ in Scott v Westminster City Council: The verb ‘to deposit’ is a term of wide connotation, apt to describe any state of affairs in which one object is placed upon another. Like all words of wide import, it is liable to attract shades of meaning which, according to the context, indicate that the placement contemplated shall have a particular connotation … It is therefore an expression to be judged in the light of its context, and, being so common a word, the number of differing contexts in which it is liable to occur is almost limitless. But unless a particular context otherwise dictates, it should be interpreted in the broad sense in which it is used in everyday speech. One of the consequences of its flexibility is that there may be cases in which it will be difficult to determine whether a particular placement has the characteristics of a deposit or not.137

Recognition of this fact led Gross LJ to conclude that it was not possible to ascertain the meaning of deposit in isolation.138 Thus, in order to resolve the meaning of the word, the judge turned not to the purpose of the 1990 Act, but to the statutory context in which the word is used.139 The primary aim was to ensure that the definition of deposit used in this case gelled, as far as possible, with the other provisions of the EPA 1990.140 His Lordship seemed therefore to have been prioritising a certain, predictable, approach, which accorded with the rule of law value of consistency, and which indeed takes the process advocated in chapter six. This case is, however, an isolated example of such a careful approach to the interpretation of this term, and elsewhere in his judgment a more purposive approach is in evidence as was seen above.141 It picks up on part of the decision

133 134 135 136 137 138 139 140 141

At n 27. At n 25 [39]. Thames Water v Bromley Magistrates’ Courts (n 27) [26]. ibid [28]. Scott v Westminster City Council [1995] RTR 327, 331. Thames Water v Bromley Magistrates’ Court (n 27) [28]. ibid [29] onwards. ibid. See p 94 in this book.

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in Fuller,142 ie to ensure that the ‘plain’ meaning of the word is employed, but also recognises that context is everything. Gross LJ did not prioritise effectiveness as part of establishing that context, but effectiveness does, alas, still hover in the background. In relation to ‘discard’ too there are signs that an alternative approach would be preferred. Comments in OSS Group143 highlighted the desire in the English courts to take account of the nature of the substance in question. The court called for a reasoned, principled, and predictable approach to the question of waste.144 Domestic courts are however repeatedly thwarted in this project by calls from the ECJ to ensure that the aims of the WFD 2008 are met, and that the definition of waste is interpreted broadly and decided on a case-by-case basis. Such dissatisfaction is apparent in Inglenorth where May J stated that, ‘[t]hose concerned with environmental protection are, however, concerned to enlarge the meaning of this ordinary word to cover circumstances which might at the fringes make it debatable whether the substance of this was or was not waste’.145 Apart from these instances of implicit criticisms of the approach of the ECJ, there are also open and bold criticisms, especially from Stanley Burton J and Carnwath LJ. In OSS Group for example, Carnwath LJ stated, in reference to the ECJ’s approach: ‘I should say at once, without disrespect, that I do not understand the second part of that answer. It is apparent from the submissions before us that I am not alone’.146 There is a clear strand of domestic judicial thinking that is attempting to rely on the traditional principles of interpretation, especially in relation to criminal law, but which feels hampered in its ability to do so by the ECJ. Pleas for certainty fall on deaf ears. Effectiveness, despite them, still dominates, and the courts are afraid in general to depart from this.

B. Contaminated Land (i) Purposive Interpretation The contaminated land regime is also being interpreted in a purposive way, but this approach is filtered into the regime this time almost solely through reliance on efficiency, on the one hand, and the polluter pays principle, interpreted as a broad justification for liability on the other. When compared with the jurisprudence on the waste legislation, the tendency to broaden definitions to ensure as much coverage as possible is less prevalent. The reliance on, and centrality of, the polluter pays principle complements this picture. It promotes a justification for liability that lies in the prevention of environmental harm through deterrent

142 143 144 145 146

Milton Keynes DC v Fuller and McVeigh (n 25). R (OSS Group) v Environment Agency (n 4). ibid [67]. Environment Agency v Inglenorth (n 14) [3]. R (OSS Group) v Environment Agency (n 4) [39].

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and the remediation of environmental harm through liability in costs. In Crest Nicholson,147 Sales J was called on to consider whether leaving soil uncovered such that contaminating substances penetrated further into the soil could constitute ‘causing’ contamination for the purposes of the EPA 1990. He concluded that it could on the basis that if the rain had not washed the substance deep into the soil it would have been removed at an earlier date during excavation works on the land.148 This analysis, as has been highlighted elsewhere,149 fails to draw a clear boundary between ‘causing’ and ‘knowingly permitting’ contamination and as such alters the balance of the regime. By treating this case as a causation (rather than permitting) case, the decision essentially means that all permitting of contamination is causing, and therefore removes the requirement of knowledge. This has the potential to broaden the class of people who become liable as Class A persons under the regime. Class A persons are said to be the embodiment of the polluter pays principle, but in Crest Nicholson there is no sustained analysis as to whether the justice inherent in the polluter pays principle applies to people who permit contamination, but who do not do this knowingly. Are such people polluters? This case is evidence not of an effectiveness-driven approach as such, but of a less principled approach in general.

(ii) Dissatisfaction with the Purposive Approach As with the waste provisions, however, some domestic courts are not satisfied with a purposive approach. In particular, the decision in R (National Grid Gas) v Environment Agency150 shows the beginnings of a more principled approach, even if it does not go far enough in that direction. This case, which was concerned with the definition of Class A persons for the purposes of the regime,151 is evidence of an approach to the meaning of ‘caused’ that goes beyond a desire simply to choose the widest class of persons liable under the regime.152 It therefore stands in contrast to the approach taken in relation to waste cases. This is due, in part no doubt, to the lack of ECJ input in relation to this regime. It can be seen as further evidence of a desire in the domestic courts to take a rounded approach to interpretation. The question to be answered by the House of Lords was whether a statutory successor to a gas provider could be said to have caused or knowingly permitted the contaminating substance to be in or under the land. It was concluded that it could not.153 The reasoning of the court is of more interest in general terms than the relatively narrow point for determination would suggest. For example, Lord Scott 147

R (Crest Nicholson) v Secretary of State for Environment (n 73). ibid [32]. 149 E Lees (published as Lochery), ‘Causing Contamination’ (2010) 140 Scottish Planning and Environmental Law 90. 150 At n 78. 151 ibid [2]. 152 ibid [29]–[30]. 153 ibid [34]–[35]. 148

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stated that, ‘this [the interpretation of the legislation which would render National Grid a Class A person] is, in my opinion, a quite impossible construction to place on the uncomplicated and easily understandable statutory language’.154 His Lordship was thus taking an orthodox linguistic approach to the provisions. There was selective reliance on policy, but there was some focus on language too. Interesting too was the approach taken to the polluter pays principle which again lies in sharp contrast to the approach to this principle in evidence in the waste cases. Lord Scott again argued that the regime is based on: The principle that the polluter should pay and that innocent owners or occupiers of contaminated land should not have to pay. I have no doubt that that was so and have no quarrel with that principle. But Transco was not a polluter and is no less innocent of having ‘caused or knowingly permitted’ the pollution than the innocent owner or occupiers of the 11 residences.155

In other words, he analysed the justifications behind the polluter pays principle to assess who the polluter was, rather than using the principle to widen the potential for liability as wide as possible to ensure that somebody paid. In doing so however he departed from his own linguistic approach and as was discussed above, the attention given to the meaning of the principle does not represent a thorough or sustained analysis.156 The seeds of principle that are present are far from dominant. Lord Neuberger too actively engaged with the meaning of the polluter pays principle albeit that he too did not reach his decision on the basis of such analysis. He reasoned that: There are no doubt arguments for extending ‘the polluter pays’ principle to a company which has acquired the whole of the business … However, there are also arguments against extending the concept of ‘the polluter’ beyond the original polluter, for instance to entities which happen to have acquired the whole or part of the business of a polluter, perhaps particularly where members of the public have been invited to subscribe for shares in such an entity, when there was no statutory liability in respect of contaminated land at all.157

The senior judiciary when dealing with the contaminated land regime has therefore tended to be circumspect about simply widening liability under the regime. No doubt this is linked to a desire to ensure that rule of law values are complied with to the maximum extent possible by avoiding retrospective liability in cases such as this, but it is also linked to a more thorough understanding of the role that principles can play in this area. Their approach is however mixed. There is no firm commitment by the court to certainty in interpretation.

154 155 156 157

ibid [20]. ibid [21]. See pp 86–87 in this book. R (National Grid Gas) v Environment Agency (n 78) [29].

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A slightly different approach again can be seen in Circular Facilities v Sevenoaks DC.158 In this case the court was asked to assess the level of knowledge required in order for the test of ‘knowingly permitted’ to be met. The court concluded that: There is no basis for limiting the ambit of the section to exclude responsibility to those who do not know of the potentiality for the chemical reaction or biological process which can affect substance A. The knowledge of the substance is taken to be the knowledge of the substance generated by the process.159

In other words, knowledge of the existence of the substance will suffice—it is not a requirement to know that the substance can, when meeting the particular contamination pathway, cause harm or the risk of harm. This is based, at least in part, on a desire not to limit the reach of the legislation. It is also based on an understanding that knowledge of the substance itself is enough to justify the ensuing obligation to remediate the land. What the court does not do is explain on what basis knowledge of the harm is not required. Such a discussion would have been useful, and it is a shame that the court explicitly takes a purely linguistic approach here without explaining the detailed reasoning employed by them in assessing these terms. Again, the process of interpretation is muddled. Some domestic courts are striving to take a measured, principled approach, for the most part, to the interpretation of contaminated land, a desire that is to a limited extent assisted by the complex guidance recently issued, but in so doing there is no commitment to any one approach. The introduction of the ELD, and the inclusion of causing contamination to land (albeit prospectively) does however mean that the ECJ will address the issue of contamination, and although they will not be interpreting the provisions of the EPA 1990, there will no doubt be pressure arising from the interaction between the EPA 1990 and the ELD to ensure that the EPA 1990 attains the same level of environmental protection as is sought under the ELD. The comments in Thames Water v Bromley Magistrates’ Court160 discussed above support such an argument.161 As a result, those seeds of a principled, linguistic approach to interpretation that are present in places will be under threat by the reach of the purposive approach.

C. Nature Conservation (i) Purposive Interpretation Finally, the nature conservation provisions, for the most part, are also being interpreted purposively. The general remarks made in Trailer & Marina (Leven)

158

At n 86. ibid [43]. At n 27. 161 See p 96 in this book and Case C-378/08 Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo Economico (n 71). 159 160

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Ltd162 are of interest as to the approach taken in relation to the designation of sites. In that case, the court concluded that: ‘the general aim … [is] to protect and preserve flora, fauna, or geological or physiographical features which are of special interest’.163 This acceptance of the aim of the act as relevant to interpretation of the regime is reflective of the guidance. Similarly, in Sweet, Schiemann J reached his conclusion on the basis of ‘the purpose of the act as a whole’164 despite the fact that the SSSI system, being purely national law, did not need to be interpreted in line with the approach of the ECJ. This purposive approach can be seen very clearly in Bagmoor Wind Ltd165 and in Feeney.166 In these cases, the courts concluded that ‘likely’ (when considered in relation to European sites) should ‘not be interpreted as referring to the probability of a significant effect but rather as a description of risk of a significant effect (that is the possibility)’.167 In reaching this conclusion the court in Bagmoor Wind Ltd168 based its decision on the ECJ’s approach in Waddenzee,169 thus adopting an explicitly purposive approach. The High Court in Feeney too based its decision on Waddenzee,170 but also engaged with the comments of Advocate General Sharpston in Sweetman v An Bord Pleanála171 who argued, ‘that versions of Article 6(3) in languages other than English, showed that “likely” could suggest a higher degree of probability than intended, and “capable of having an effect” was closer to the true sense of the Directive’.172 There was engagement with the appeal of the purposive approach in the European context, ie the divergence of language with no one taking precedence. The court highlighted that it needed to interpret the CSHR 2010 in accordance with the jurisprudence of the ECJ and so adopted the ‘possible’ test.173 The confusion that this results in however is made clear in the court’s discussion of the relationship with SSSI designation. Ouseley J stated that this problem: is highlighted by the contrast between the language and approach of the Inspector when dealing with the Environmental Statement and impact on the SSSIs, and the language he used when dealing with the same air quality impact on two of the same SSSIs, viewed from the perspective of the Habitats Directive and CHS Regulations. In the former, the Inspector was satisfied that the scheme was ‘not likely to have an adverse effect on the

162

Trailer & Marina (Leven) Ltd v Secretary of State (n 92). ibid [60]. 164 Sweet v Secretary of State for the Environment (n 95) 250. 165 Bagmoor Wind Ltd v The Scottish Ministers [2012] CSIH 93. 166 Feeney v Secretary of State for Transport (n 97). 167 M McMurray, ‘Habitats Regulations: Recent Court Decisions’ (2013) 158 Scottish Planning and Environmental Law 84, 84. 168 Bagmoor Wind Ltd v The Scottish Ministers (n 165) [42]–[48]. 169 At n 96. 170 Feeney v Secretary of State for Transport (n 97) [12]. 171 Case C-258/11 (not yet published). 172 Feeney v Secretary of State for Transport (n 97) [13], discussing AG Sharpston in Sweetman v An Bord Pleanála (n 171). 173 Feeney v Secretary of State for Transport (n 97) [14]. 163

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notified special interest features of this SSSI’; and in the latter, he adopted a precautionary approach, requiring Condition 31 to exclude the risk of harm which might arise.174

In other words, ‘likely’ must be interpreted in two different ways in relation to the same site when asking the same question, depending on whether the decisionmaker has an ‘SSSI hat’ or an ‘SAC hat’ on. It is clear to see that this may cause significant confusion for the owner of such a site, not least because of the precautionary approach which is taken to evidence.175

(ii) Dissatisfaction with the Purposive Approach The decision in North Uist Fisheries v Secretary of State for Scotland176 does however give some credence to the argument that the domestic courts will, on occasion, interpret risk assessment provisions in a way that recognises the impact of a broad reading on the liberty of those subject to the rule. In this case, the Scottish court, was called onto interpret the meaning of ‘likely’ for the purposes of specification of operations within a notification. It was concluded that the best interpretation of this term was ‘probable’.177 Lord Cullen stated that in part this decision was based on the fact that a broad interpretation of likely ‘would restrict the extent to which an owner or occupier could lawfully use the land’.178 This can be contrasted with the approach of the ECJ in Waddenzee179 where such a risk assessment was carried out on the basis of the precautionary principle.180 It must also be contrasted with the Court of Session’s approach to the same term, but in relation to European sites, in Bagmoor Wind Ltd.181 Similarly, in Southern Water Authority v Nature Conservancy Council182 the national court took a relatively narrow approach to interpretation. This case discussed the meaning of ‘occupier’ for the purposes of the SSSI regime. It concluded that: The juxtaposition with ‘owner’ shows, to my mind, that the occupier is someone who, although lacking the title of an owner, nevertheless stands in such a comprehensive and stable relationship with the land as to be, in company with the actual owner, someone to whom the mechanisms can sensibly be made to apply. A stranger who enters the land for a few weeks solely to do some work on it does not fall into this category.183

The approach taken is a linguistic one. It considers how the relevant term fits into the overall provisions. It does not strive to achieve maximum environmental 174 175 176 177 178 179 180 181 182 183

ibid [44]. ibid [12]. At n 93. ibid 39. ibid. At n 96. ibid [44]. Bagmoor Wind Ltd v The Scottish Ministers (n 165). At n 94. ibid 782.

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protection, but again there is no overall commitment to a linguistic approach. It will be seen later that the key to understanding these provisions is the notion of permitted abandonment of responsibility.184 The approach taken by the court here is one which fits well with this notion. Unfortunately, the shift in the provisions to a mandatory rather than a voluntary approach following the Countryside and Rights of Way Act (CROWA 2000) amendments, and the increasing focus on the need to protect the environment advocated by the ECJ, means that this sensible approach to the relevant relationship between offender and the land is unlikely to be mirrored elsewhere without a shift in emphasis. Finally, the decision in E.ON Development185 is also of note. The planning inspector here noted that very broad conditions placed on planning permission to ensure environmental protection would be unacceptable, despite their conservation benefits. He argued that such conditions ‘would create great uncertainty and unreasonable financial risk for the developer’.186 The purposive approach does not therefore have universal approval amongst the judiciary. Even where the courts express dismay at the approach however, interpretation remains essentially aim-based in outcome.

D. Conclusions Domestic courts are using a teleological approach to interpretation. This leads to the uncertainty outlined above because it sets in motion the case-by-case approach. It also results in a judicial unwillingness to engage with statutory interpretation properly for fear of appeals. Domestic courts, more used to as they are to a linguistic interpretive approach, are not entirely comfortable with this, and from time to time a more principled approach does emerge. As things stand however this does not represent the norm. The reasons for this are discussed in the next chapter. The existence of the problem of uncertainty in the domestic courts from this analysis is however very clear.

184 185 186

See pp 190–93 in this book. E.ON UK Development Ltd v King’s Lynn and West Norfolk Council (n 108). ibid [121].

6 Identification of the Cause of Uncertainty: The Regulatory Culture Chapter five demonstrated the uncertainty that exists in the interpretation of key terms of the criminal offences established by the regimes discussed in this book. The immediate cause of this uncertainty was shown to be a focus of the domestic judiciary on the aim of these regimes. This focus is, however, as much a symptom of uncertainty in regulation as it is a cause. The real question is why the domestic courts feel bound to take such an approach, despite their occasionally expressed reluctance to do so. It is only by exploring this that the deep cause of the uncertainty can be identified, and thus tackled. This chapter considers the prevailing regulatory culture to demonstrate that it is this which results in the overwhelmingly purposive approach at the domestic judicial level. The foundation for this approach is to be found in the jurisprudence of the European Court of Justice (ECJ). Policy-makers and legislators too, take this approach, as do environmental law scholars in their own analysis of the regimes. The aim of achieving environmental protection is seen as paramount. After having considered the jurisprudence of the ECJ on these regimes, this chapter outlines the relevant approach taken in the administrative guidance, an approach that has significantly hampered the domestic courts in their attempts to interpret the regimes in a predictable and coherent fashion. The chapter then considers the academic discussion on the relevant regimes to examine the existing academic approach to interpretation. It will become clear that the majority of academic commentary on the relevant regimes has as its focus ensuring effective environmental protection. Of course, such authors are often aware of the need for certainty, but in most cases the focus is on certainty as a means to an end, which contributes to the prevailing attitude. It will become clear that the combination of the purposive approach of the ECJ, the attitude of policy-makers and regulatory agencies, and the majority of scholars considering the relevant regimes, produces such an unchallenged assumption of a need for a purposive approach to interpretation that it becomes difficult to resist.

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I. Approach of the ECJ National courts may wish to distance themselves from unprincipled, effectivenessdriven interpretation of the relevant provisions, but they see themselves as mandated to take this approach by the ECJ.1 The ECJ does indeed take an approach which is not only effectiveness-dominated, but is in fact only concerned with effectiveness to the point where uncertainty and a lack of relationship between the terms of the rule and the rule applied, are positively welcomed. For example, in Vessoso and Zanetti,2 the Court made it clear that the definition of waste cannot exclude substances that are capable of economic re-utilisation3 because: The protection of human health and the safeguarding of the environment, would be jeopardized if the application of those directives were dependent on whether or not the holder intended to exclude all economic reutilization by others of the substances or objects of which he disposes.4

There is no question that the ECJ is taking an approach which has as its central goal to achieve the stated aims of the Waste Framework Directive 2008 (WFD 2008) when interpreting the meaning of the term waste. The classic statement of this approach is to be found in Palin Granit:5 The term ‘discard’ must be interpreted in light of the aim of Directive 75/442 which … is the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, and Article 174(2) EC, which provides that Community policy on the environment is to aim at a high level of protection and is to be based, in particular, on the precautionary principle and the principle that preventive action should be taken. It follows that the concept of waste cannot be interpreted restrictively … More specifically, the question whether a given substance is waste must be determined in the light of all the circumstances, regard being had to the aim of Directive 75/442 and the need to ensure that its effectiveness is not undermined.6

There is a drive to meet the aims of the Directive and a direct appeal to effectiveness. The precautionary principle and preventive principle are used to justify taking an expansive approach. Their content is not examined; their specific role not considered. Similar reasoning is evident in Van de Walle,7 AvestaPolarit8 and

1

See ch 3. Cases C-206/88 and C-207/88 Criminal proceedings against G Vessoso and G Zanetti, [1990] ECR I-01461. 3 ibid [9]. 4 ibid [12]. 5 Case C-9/00 Palin Granit Oy and Vehmassalon Kansanterveystyön Kuntayhtymän Hallitus, [2002] ECR I-03533 (Palin Granit). 6 ibid [23]–[24]. 7 Case C-1/03 Van de Walle v Texaco Belgium [2004] ECR I-7613 (Van de Walle). 8 Case C-114/01 AvestaPolarit Chrome Oy [2003] ECR I-8725. 2

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ARCO Chemie.9 The language in each of these cases is the same. In Van de Walle,10 the Court repeated verbatim the guidance given in Palin Granit.11 It affirmed that the approach cannot be restrictive, nor can it be driven by linguistic concerns, where the effectiveness of the WFD 2008 is at stake. The result of this is that a broad, category-based approach to waste cannot be adopted in the Member States even if such an approach, by increasing certainty in the application of the regime, would in fact be more likely to lead to effective environmental protection. Any reliance on principle in the shape of the polluter pays principle serves only to reinforce the effectiveness-driven approach.12 The principle is not used as a ‘short-cut’ justification for a particular individual paying for damage done to the environment, nor is it used as an aid to identify such relevant persons. Rather, the principle is used primarily as a means to justify the expansion of the waste controls. A truly principled approach would require the court to analyse why, in a particular instance, the principle merited an expansionist approach. The polluter pays principle depends, in essence, on a definition of polluter for its application. If, with a view to ensuring that environmental protection is achieved, the definition of polluter is expanded at the same rate as the definition of the polluting act (here ‘depositing’), the principle provides nothing beyond a prima facie justification for a step that would be taken anyway. Not only do the courts call for effectiveness directly therefore, but also indirectly. Even the use of principles becomes a cover for an aim-based approach to interpretation where, once again, the aims themselves are not fully articulated. The risk of such ‘mistreatment’ of the principles can also be seen in relation to contaminated land in Raffinerie Mediterranee.13 In this case the ECJ considered the meaning of the polluter pays principle in the context of contaminated land. It asked whether the existence of the Environmental Liability Directive (ELD) meant that a Member State was unable to impose liability for the remediation of contaminated land where there was no causal connection between an individual and the pollution.14 It assessed whether a presumption to the effect that an operator on land was presumed to have caused the pollution was compatible with the polluter pays principle.15 The Court concluded that although such a presumption was permissible, there must be plausible evidence capable of justifying the presumption.16 The Court was therefore (rarely indeed) engaging with the meaning 9 Case C-419/97 ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (C-418/97) and Vereniging Dorpsbelang Hees, Stichting Werkgroep Weurt+ and Vereniging Stedelijk Leefmilieu Nijmegen v Directeur van de dienst Milieu en Water van de provincie Gelderland [2000] ECR I-04475 (ARCO Chemie). 10 At n 7, [45]. 11 At n 5, [36]–[40]. 12 Van de Walle (n 7) [58]. 13 Case C-378/08 Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo Economico [2010] ECR I-01919. 14 ibid [53]. 15 ibid [56]. 16 ibid [70].

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of the polluter pays principle to see how this principle interacted with issues such as scientific uncertainty. It addressed the justice inherent in the principle to see how far the polluter pays principle could go. It reaches its limits, according to the ECJ, when it meets diffuse pollution without an immediate or obvious causal link with any individual. Unfortunately, the Court also stated that when taking measures that back up a liability sanction, such as a refusal for planning permission, unless remediation activities are carried out elsewhere, the measure must be justified by the general goal of environmental protection. As Edwards summarises: Such a measure must be justified by the objective of preventing a deterioration of the environmental situation in the area in which those measures are implemented or, pursuant to the precautionary principle, by the objective of preventing the occurrence or resurgence of further environmental damage on the land belonging to the operators.17

Towards the end of the judgment, therefore, reliance on the principles as a shortcut to effectiveness becomes apparent. The Court relied on the prevention of environmental damage as a legitimising argument for the ensuing rule. Going forward, this may have implications for the approach to the Environmental Protection Act 1990 (EPA 1990) since the domestic courts will be aware of the potential need for measures to be justified by the goal of environmental protection and will therefore tailor their explanation of their approach to interpretation to ensure this. Such a likelihood highlights the importance of establishing an explicit framework for interpretation that can be openly relied on. The comments made in Waddenzee18 in relation to nature conservation too are a clear indication of the approach of the ECJ. The Advocate General argued that: ‘the terms “plan” and “project” should be interpreted broadly, not restrictively’,19 and the Court itself took a similar, purposive approach. She concluded that: ‘the Habitats Directive … seeks … to prevent activities which are likely to damage the environment from being authorised without prior assessment of their impact on the environment’.20 Thus the interpretation of the ‘threshold for intervention’ terms, such as ‘plan or project’ (and thus by analogy, ‘operation’), which are critical for the determination of the scope and scale of the impact of the regime, must be interpreted broadly in order to ensure that the regime is capable of being effective in terms of environmental protection. The ECJ also strives to ensure that acts which may damage the environment cannot slip through the net of protection. Crucial here is the decision in Akester.21 In that case the court was required to determine the meaning of the terms ‘plan

17 V Edwards, ‘Significant EU Environmental Cases: 2010’ (2011) 23 Journal of Environmental Law 143, 152. 18 Case C-127/02 Landelijke Vereniging to Behold van deer Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserrij [2004] ECR I-7405 (Waddenzee). 19 ibid, opinion of AG Kokott, [A30]. 20 ibid [26]. 21 R (Akester) v DEFRA [2010] EWHC 232 (Admin), [2010] Env LR 33.

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or project’ and in doing so relied heavily on the earlier decision of the ECJ in Waddenzee. The court concluded that: In Waddenzee the court made it clear that art.6(3) should be interpreted in the light of its broad objective, namely a high level of protection of the environment, and in particular that the authorisation criteria laid down in its second sentence ‘integrates the precautionary principle’, which it described as being one of the foundations of the high level of protection pursued by Community policy.22

This approach highlights not only the focus on effectiveness, but also part of the reason for that focus. The teleological approach has turned into an approach which is solely focused on environmental protection and from which it is difficult to depart. Crucially, just because a purposive approach to the interpretation of these provisions must be taken, there is no need to restrict ‘purpose’ to protection of the environment. Instead, the purpose of the regulation may be to protect the environment in a manner which is in accordance with more general principles of regulation, such as compliance with the rule of law. In addition to the interpretation of the terms ‘plan or project’, the ECJ in Waddenzee23 also discussed the meaning of the term ‘significant’, which constitutes a threshold for regulatory intervention and cuts across the nature conservation and contaminated land provisions. In this discussion the environmental principles are again used as a short cut to justify expansive interpretation. As Verschuuren notes, ‘by stressing the importance of the precautionary principle, [the ECJ] has rendered the discussion on the word ‘significant’ purely academic’.24 There is no way to prove that demonstrable damage is not significant where the consequences of such damage in the future cannot be known thanks to the levels of uncertainty involved. The invocation of the precautionary principle has the result of turning the principle from a principle of law, to a policy statement advocating a finding of significance even where there is no evidence to that effect. Such an approach was confirmed in Briels v Minister van Infrastructuur where the Court stated that ‘where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site’s conservation objectives, it must be considered likely to have a significant effect on that site’.25 Since only significant effects are covered by the legislation, the court transforms ‘significant’ to ‘harmful to the environment’ at all. It attaches a highly precautionary approach to the definition. In Briels v Minister van Infrastructuur, it was held that ‘the authority must refuse to authorise the plan or project being considered where uncertainty remains as to the absence of adverse effects on the integrity of

22

ibid [74]. Waddenzee (n 18). 24 J Verschuuren, ‘Shellfish for Fishermen or for Birds? Article 6 Habitats Directive and the Precautionary Principle’ (2005) 17 Journal of Environmental Law 265, 281. 25 Case C-521/12 Briels and Others v Minister van Infrastructuur en Milieu (not yet published), [20]. The Court here followed the earlier approach in Case C-258/11 Sweetman v An Bord Pleanála (not yet published). 23

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the site’.26 The result is that unless it is possible to prove that a ‘plan or project’ (which is defined very broadly) cannot have an impact of any sort on the environment, the courts of the Member States are directed to conclude that there is a significant effect on the environment resulting in an assessment as to whether the project or plan adversely affects the site. This approach is mirrored in the guidance provided by the European Commission as discussed below:27 While there is a need for objectivity in interpreting the scope of the term ‘significant’, clearly such objectivity cannot be divorced from the specific features and environmental conditions of the protected site concerned by the plan or project. In this regard, the conservation objectives of a site as well as prior or baseline information about it can be very important in more precisely identifying conservation sensitivities.28

This approach, although related to questions of appropriate assessment, will extend to questions of the content of notifications, and therefore to questions of criminal liability. Similarly, in relation to the meaning of ‘adverse effect on integrity’, the ECJ in Sweetman v An Bord Pleanála29 concluded that a site must be maintained in a favourable conservation status if its integrity is not to be adversely affected.30 The Court also argued that a plan or project would adversely affect integrity if it was likely to hinder the long-term preservation of the key features of that site.31 In so concluding, as Reid highlights: The European Court takes seriously the legislation’s ‘fundamental objective’ … [and] through its insistence on a precautionary approach and on giving the terms of the Directive a meaning that does ensure effective protection … it is working to protect important sites from authorities that may be too easily swayed by the competing pressures for social or economic development.32

The Court is therefore taking both an explicitly precautionary and purposive approach to the meaning of these terms. This is done in such a way as to effectively merge precaution and purpose, leaving the principle without genuine content. Furthermore, in both Sweetman and in Briels, the ECJ noted that, ‘the provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by the directive’,33 encouraging an analysis which does not consider too closely the precise wording in explaining the relationship between the various parts of Article 6. This was confirmed by the opinion of Advocate General Sharpston who reasoned first from purpose, and 26

Briels v Minister van Infrastructuur (n 25) [26]. See also [28]. See pp 110–20 in this book. 28 European Commission, ‘Managing Natura 2000 Sites: the Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC’ (Luxembourg, Office for Official Publications of the European Communities, 2000) [4.4.1]. 29 At n 25. 30 ibid [39]. 31 ibid. 32 CT Reid, ‘Protection of European Sites’ (2013) 158 Scottish Planning and Environmental Law 90, 91. 33 Briels v Minister van Infrastructuur (n 25) [19]. 27

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then considered whether the conclusion reached was precluded by the language of the article, rather than the other way round: Nor is a measure any less likely to protect the overall coherence of Natura 2000 where it is implemented within the affected site than where it is implemented in another part of the Natura 2000 network (if anything, it may be more likely to do so). And I find nothing in the wording of Article 6(4) of the Habitats Directive to persuade me otherwise.34

***** The ECJ is driving the teleological approach and overrides the reluctance of national courts to take such an expansive, purposive approach. This is the most significant cause of the national courts’ approach, and the most formidable barrier to change. This exploration of the relationship between the national courts and the ECJ in this context does however begin to highlight where change might occur at the national level. It will occur when the national courts are able to use a clear understanding of the mischief tackled by the statutory provisions as a genuine principle of law, rather than as a shortcut to policy outcomes. In order to achieve this however there needs to be a change not just in the courts’ approach, but also in the general culture of regulation. It is clear from this evidence that the ECJ is taking a purposive approach to interpretation of European legislation, and in particular it is taking a purposive approach to environmental legislation where purpose is defined narrowly (the narrow purposive approach). Whilst this is not directly applicable in relation to some national legislation (in relation to contaminated land provisions contained in the EPA 1990, for example, notwithstanding the impact of the ELD on the overall approach taken to this regime), it has engendered a general approach to environmental law characterised by the position that purposive interpretation means broad interpretation to cover as many actions as possible, so as to ensure maximum environmental protection. Thus the approach of the ECJ has had a significant impact on the national courts’ approach to interpretation of the environmental offences made up by these regimes. Before moving away from discussion of the purposive approach however, it is important to consider why such an approach is being taken. This is a complex question, and the detail of the inner workings of the ECJ is beyond the scope of this work. However, to highlight certain key factors here, there are a number of reasons that that we can point to that have resulted in the taking of a narrow purposive approach in relation to environmental legislation. Firstly, and perhaps most importantly, in interpreting legislation that springs from the EU legal order, the ECJ recognises that such an order is defined and constituted by its purpose.35 The Treaty on the Functioning of the European Union (TFEU) and its predecessors demonstrate that the EU legal system exists in order 34 35

ibid, AG Sharpston, [46]. N Walker, ‘European Constitutionalism and European Integration’ (1996) Public Law 266, 277.

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to achieve certain mutual ends. ‘Environmental litigation’, therefore, ‘reveals the Court’s active participation in the integration project’.36 It is not a traditional legal system in that it has been deliberately created with particular defined ends in mind.37 Purpose is therefore central to the whole legal order. Secondly, the general purpose of integration and free trade of the Union is always the priority of the legal order except where other purposes are made clear.38 Environmental protection is an explicit aim within the treaty and is singled out as a particular goal of the Union independent from its general more economic purpose.39 It is therefore treated within the treaty as a specific goal of the Union, worthy of special mention, and therefore perhaps worthy of special purposive attention by the Court. As a result, there is incentive both to take a purposive approach, and specifically to take quite a narrow purposive approach, defining the purpose as environmental protection. Thirdly, the nature of EU legislation is such that there might be deliberate linguistic vagueness in order to foster compromise amongst the various political actors. Thus a linguistic approach may not be entirely appropriate against such a background, meaning the purposive approach becomes more appealing. As Cichowski argues, ‘the Waste Framework Directive offered a general rather than specific definition of waste (the results of unanimity voting)’.40 The legislative process itself is likely to produce vague legal standards. It is therefore perhaps in the nature of the EU that its highest court is interpreting its legislative texts by reference to their purpose. But what we have seen here is that the ECJ is not just taking a purposive approach. The ECJ is taking a purposive approach which sees the only purpose of the legislation as being environmental protection. In fact, it is this limitation on the meaning of purpose, rather than the calling on purpose in general, that has done the most to undermine the legal certainty operating within the EU in the environmental context.41 It prevents integration of rule of law values into the process of interpretation. The possibility of moving away from such an approach is discussed in chapter eight.

II. Administrative Approach Such an effectiveness-driven culture can also be seen in the administrative approach. There is significant pressure to take a teleological approach to interpretation from

36 RA Cichowski, The European Court and Civil Society: Litigation, Mobilization and Governance (Cambridge, Cambridge University Press, 2007) 140. 37 Legitimacy in the EU can be seen in this sense as output-dependent. See G Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge, Cambridge University Press, 2012) 96. 38 A Stone Sweet, The Judicial Construction of Europe (Oxford, Oxford University Press, 2004). 39 Consolidated version of the Treaty on European Union OJ [2012] C326/1, Art 3. 40 Cichowski, The European Court (n 36) 136. 41 For more on ‘breadth of purpose’ decisions, and the impact that this has on legal certainty within the EU, see Conway, The Limits of Legal Reasoning (n 37).

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the guidance issued by the enforcing authorities (the Environment Agency and Natural England), and by the Department for Environment, Food and Rural Affairs (DEFRA), as well as by the agencies of the EU. The guidance on the three regimes will be considered in turn to demonstrate this.

A. Waste In demonstrating this effectiveness-driven, uncertain and incoherent approach, the starting point as far as the administrative approach to waste is concerned is the recent review of waste management policy. This reveals the coalition government’s attitude to waste regulation (and indeed to environmental regulation in general).42 At action no 48 it is stated that: ‘[t]he purpose of this work is to reduce the regulatory burden on business rather than create changes in waste management’.43 As a policy basis for a coherent regulatory system such an approach is demonstrably unsatisfactory. The inevitable compromise position reflects a lack of commitment to viable regulation. The government is aiming, without fundamentally changing the approach to waste management, to reduce the burden of such regulation.44 It is striving for efficient regulation. But regulation can only be considered efficient if it not only imposes as small a burden as possible on the regulated, but if it meets its aims in so doing.45 Thus the overriding government approach to waste management is an effectiveness-driven one. This overriding approach is represented in the specific guidance. Exactly what would constitute effective waste management is not however articulated. Reliance on unspecified aims is perceived as necessary as a result of the fact that there is widespread dissatisfaction with the rules as they currently operate. The shift to ‘greater efficiency’ is intended to operate as a counter-balance to uncertainty, but in promoting an approach that has this focus, ironically, increased uncertainty will be achieved. As an example of this, examination of the DEFRA-produced document, intended to act as guidance for navigating the case law on the definition of waste, reveals a lack of commitment to any particular interpretation of the relevant

42 DEFRA, ‘Government Review of Waste Policy in England 2011—Action Plan’ (London, DEFRA, 2011), accessible at www.gov.uk/government/uploads/system/uploads/attachment_data/file/69402/ pb13542-action-plan-.pdf. See also HM Government, ‘Prevention is Better than Cure’ (London, DEFRA, 2013) 8–9. 43 ibid 14 at action no 48. 44 This is supported by DEFRA’s overall business plan from 2012 which outlines the goal of reduction of disproportionate burdens that the waste regime has given rise to. DEFRA, ‘Business Plan 2012–2015’ (London, DEFRA, 2012). 45 The question as to what constitutes efficient regulation is a complex one. See DA Dana, ‘The New “Contractarian” Paradigm in Environmental Regulation’ (2000) 35 University of Illinois Law Review 35. There is a possible distinction between efficiency which is based on a ‘win-win’ scenario where both sides—business, and those who advocate higher environmental protection—are happy. Alternatively, efficiency could be calculated on the basis of a cost-benefit analysis. It is not clear what is meant here.

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provisions.46 It contains a detailed explanation of the definition of waste, as well as a more practical guide to assist business users in assessing whether any particular material is waste.47 Despite approaching the issue of the definition of waste from a general perspective, this document becomes, in essence, a list of the relevant case law. There is little by way of explanation as to how these cases should be applied or how they are understood as a whole. Given that the policy of the ECJ is to assess each substance, each action, each circumstance, on a case-by-case basis,48 it is unsurprising that DEFRA feels unable to provide more coherent guidance than this. The result is that the guidance is forced to fall back onto aims and purposes which are vague and often contradictory. It is difficult to glean from this document any overall approach to waste, beyond a desire to ensure that the UK is meeting its EU law obligations. Enforcing authorities are left without truly helpful guidance, and are instead required to assess for themselves what would constitute effective regulatory intervention. In this regard, even specific guidance, when examined in detail, becomes unhelpfully vague. For example in relation to the by-products exception the guidance stipulates that: The decision as to whether or not a substance or object meets the conditions set out in Article 5(1)(a)–(d) must be made on a case-by-case basis in the light of all the circumstances and in a way which does not undermine the effectiveness of the WFD.49

This reliance on a case-by-case effectiveness approach inevitably reduces certainty. It sacrifices such certainty for ‘effectiveness’ where effectiveness is not in fact defined. In relation to by-products and end-of-waste status there is a pressing need for the guidance to provide certainty. In falling back on the aims of the WFD 2008, a self-perpetuating incoherence is set in motion. This has a powerful knock-on effect on the way in which the rules impact on the liberty of individuals. It reduces the extent to which they are able to plan on the basis of a rule, and increases the amount of administrative discretion in the rule’s interpretation and application. To ground this approach there is a need either to have clear and certain understandings of exactly what effectiveness means in this context—which we do not (and arguably, thanks to scientific uncertainty,50 cannot) have, and which at the very least is not present in this guidance document—or we need to have a

46 DEFRA, ‘Guidance on the Legal Definition of Waste and its Application’ (London, DEFRA, 2012), accessible at www.defra.gov.uk/publications/files/pb13813-waste-legal-def-guide.pdf. 47 ibid. 48 ARCO Chemie (n 9) [42]—Member States are not entitled to use presumptions to assist in their interpretation of the definition of waste as this may undermine the effectiveness of the Directive. 49 DEFRA, ‘Guidance on the Legal Definition of Waste’ (n 46) 10 at [G.1.12(b)]. 50 Finding the meaning of effectiveness in the waste context is made even more difficult by the fact that, as highlighted above, the best waste regimes result in no waste being produced, rather than ensuring that any waste that is produced is dealt with in an environmentally responsible fashion. For more information on the relevance of scientific uncertainty here, see pp 27–30 and 164–67 in this book.

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principled underpinning which can be used to counter-balance the discretionary elements of the approach to ensure the application of the rules is as predictable as possible. Instead of providing such principled information however, the guidance reaffirms at regular intervals the case-by-case approach that must be taken. Whether a substance or object is being discarded has to be decided on a case-by-case basis, and taking account of all the circumstances, to ensure the aims of the WFD (i.e. protection of the environment and human health) are not undermined. In other words, each case must be assessed on its own merits.51

At the very least, one wonders how it is possible to interpret the words ‘discard’ and ‘deposit’ in light of the aims of the regime when this is how those aims are described: The primary objectives of waste management legislation are to protect the environment and human health, to reduce the overall impacts of resource use and to improve the efficiency of resource use. But these are not the only objectives. It may be worth setting out, therefore, the main reasons for regulating waste as these will be behind any decision as to whether something is, or is not, waste. The main reasons are: (a) the risk to the environment and human health; (b) waste as a resource; and (c) the economic dimension.52

This explanation of the aims of the regime which are supposed to be, at least according to DEFRA’s own guidance, the ECJ53 and (reluctantly)54 the English courts,55 the main drivers behind interpretation of the relevant legislation, is difficult to apply in practice. The European Commission too seems unable to provide assistance to the courts and regulators in relation to the definition of waste. Although an extensive document outlining examples of the waste definition in practice is provided, at all times the caveat of expansive definition and the need to ensure purpose, is central to this guidance.56 If it is impossible to state with any precision what the aims are, how can these aims possibly be useful by way of interpretative tool? The guidance is useful in some respects, especially where it summarises the sorts of products that fall into one category or another, allowing reasoning and determination by analogy, but it is not enough. It is primarily designed to ensure that the waste legislation is applied in such a way as to 51 DEFRA, ‘Guidance on the Legal Definition of Waste’ (n 46) 15 at [G2.4]. Such an approach is also to be found in the guidance emanating from the European Commission. See European Commission, ‘Guidance on the Interpretation of the Key Provisions of Directive 2008/98/EC on Waste’ (Luxembourg, DG Environment, 2012). 52 ibid at [G3.4]. 53 ARCO Chemie (n 9) [37]: ‘The Court has held that that term must be interpreted in light of the aim of the directive’. See also, Case C-206/88 and C-207/88 Criminal proceedings against G Vessoso and G Zanetti (n 2) [8]. 54 The English courts have been very unflattering about the ECJ jurisprudence. Castle Cement v Environment Agency [2001] EWHC Admin 224, [2001] Env LR 46, [19] and [45] per Stanley Burton J; R (OSS Group) v Environment Agency [2007] EWCA Civ 611, [2008] Env LR 8, [39], [40], [43], [55] and [67] per Carnwath LJ. 55 R (OSS Group) v Environment Agency (n 54) [14]. 56 European Commission, ‘Key Provisions of Directive 2008/98/EC’ (n 51) 10–11.

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minimise the environmental damage caused by substances which are intended to be, or are, discarded. In attempting to achieve this, the guidance resorts to the same case-by-case approach mandated by the ECJ to ensure that no cases ‘slip through the gaps’, and this causes uncertainty, which, of course, ironically, will impact on effectiveness. The guidance is to this extent counter-productive but it is also unprincipled. The guidance concerning interpretation of the key trigger terms in the EPA 1990 and the WFD 2008 is therefore unhelpful. There is also guidance from the Environment Agency regarding enforcement which reveals the reach of the effectiveness-driven regulatory culture. For example, in the ‘Enforcement and Sanctions’ statement57 the Environment Agency states that its: aim is to provide a better environment for England and Wales, both now and in the future … Provisions of clear advice and guidance will be our main approach to secure compliance but securing compliance with legal requirements by using enforcement powers including civil sanctions and prosecutions, is an important part of achieving this aim.58

The link drawn here between clarity, good advice, and effectiveness is telling. Clarity and coherence are seen as adjuncts to, not separate from, effectiveness. This can also be seen in relation to the subsidiary aims of regulation, including the principle of firm but fair regulation. Here the Environment Agency seeks to ensure ‘consistency of approach; [and] transparency about how we operate and what those we regulate may expect from us’.59 This uniformity is however subject to the use of discretionary judgments to ensure that ‘uniformity’ means uniform effectiveness, rather than being a stand-alone criterion by which to judge regulator actions.60 Of interest too is its position statement on the definition of waste.61 The guidance touches on one specific issue of uncertainty outlined above62—that is whether or not excavated material with a re-use planned constitutes waste.63 There is some guidance given on this matter, but more than a superficial reading of this guidance shows that it cannot solve the uncertainty problem, but rather shifts the ‘siting’ of that uncertainty. The guidance states that: In certain circumstances, excavated material re-used in the development of land may not be waste, and hence not subject to regulatory control, provided that the aims and objectives of the Waste Framework Directive are not undermined and that its use will not harm human health or the environment. We consider this may be the case for excavated 57 Environment Agency, ‘Enforcement and Sanctions Statement’ (London, Environment Agency, 2011). 58 ibid 2. 59 ibid 4–5. 60 ibid 5. 61 Environment Agency, ‘Position Statement—Definition of Waste: Development of Industry Code of Practice (V2)’ (London, Environment Agency, 2011). 62 See p 112 in this book. 63 Environment Agency, ‘Definition of Waste’ (n 61) App 1.

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material used on the site where it was produced or at other sites when; used in appropriate amounts; is suitable for that use directly without treatment; [and] its use will not cause harm to human health or the environment.64

There is a voluntary Code of Conduct which assists in determining whether human health will be affected, for example, but whatever certainty could be achieved in relation to this guidance, it is always subject to the caveat of ensuring environmental protection.65 The courts’ abdication of responsibility for interpretation results in the practice of enforcing authorities being the primary forum within which interpretation will take place. The Environment Agency has indicated that it will attempt to use its discretion in a clear and consistent manner. Such consistency is however premised on effective intervention. Consistent commitment to the goal of environmental protection will not result in consistent interpretation without judicial guidance to help bound discretion.

B. Contaminated Land As far as contaminated land is concerned, the first source of information to examine is the recently updated guidance.66 This guidance has a number of interwoven strands of policy running through it and represents a complex compromise between the coalition desire to achieve localised decision-making and nationally prescribed aims. In doing so, it prioritises the aims of the regime as a tool to assist in interpretation and to minimise disagreements over the precise shape of that compromise. The guidance introduces, from a desire to reduce the overall regulatory burden resulting from the regime, a presumption against a finding of contamination.67 There is no doubt that this presumption will, as a practical matter, result in less land being potentially remediated under the regime. This presumption is a realistic assessment of the ability of the regime to achieve its goals and is a narrowing of the potential scope of the regime. It means that the definition of ‘effectiveness’ in this area has changed from achieving as much as possible, to tackling the historical problem of contamination by addressing the worst, first.68 Significantly, the new guidance calls for enforcing authorities to ensure that the regime is achieving a net benefit.69 Thus certainty and predictability are still being sacrificed to effective 64

ibid App 1, 1. CL:AIRE, ‘The Definition of Waste: Development Industry Code of Practice (Version 2)’ (London, CL: AIRE, 2011, http://www.claire.co.uk/index.php?option=com_content&view=category&layout=bl og&id=977&Itemid=330). 66 For a broad review of this guidance, see E Lees, ‘The Contaminated Land Regime: New Guidance and a New Philosophy?’ (2012) 14 Environmental Law Review 267; V Fogleman, ‘The New Statutory Guidance; Simplification or Reducing the Application of Part 2A of the Environmental Protection Act 1990?’ (2013) 15 Environmental Law Review 47. 67 DEFRA, ‘Environmental Protection Act 1990: Part 2A—Contaminated Land Statutory Guidance’ (London, HMSO, 2012) 5 at [1.3]. 68 ibid 7 at [2.7]. 69 ibid 5 at [1.6]. 65

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intervention. In relation to contaminated land, unlike in relation to waste, effectiveness does not mean as much intervention and control as possible, but is tailored to ensuring that the ‘right’ issues are being controlled. The most significant aspect of the guidance for the purposes of this book however is the structural change from the 2006 Circular which results in the aims of the regime being integrated into the statutory—binding—guidance, rather than appearing in the non-binding guidance.70 The aims themselves are therefore binding tools for interpretation, rather than simply performing a background, justificatory role. These aims are: The overarching objectives of the Government’s policy on contaminated land and the Part 2A regime are: (a) [t]o identify and remove unacceptable risks to human health and the environment; (b) [t]o seek to ensure that contaminated land is made suitable for its current use; (c) [t]o ensure that the burdens faced by individuals, companies and society as a whole are proportionate, manageable and compatible with the principles of sustainable development.71

Local authority action must be based on attempting to achieve these aims. As with the aims outlined in relation to waste, these aims are not sufficiently detailed to provide anything beyond a general guide. As such, they generate uncontrolled discretion that ought to be counteracted by a legitimising framework of principles developed by the courts. The guidance itself does attempt to integrate principles into the decisionmaking process: The authority should take a precautionary approach to the risks raised by contamination, whilst avoiding a disproportionate approach given the circumstances of each case. The aim should be to consider the various benefits and costs of taking action, with a view to ensuring that the regime produces net benefits, taking account of local circumstances.72

It therefore attempts to bring the precautionary principle, and the principle of proportionality, as well as the polluter pays principle, into the framework of interpretation of this regime. In so doing, the guidance fails in that it does not specify what is meant by a precautionary approach (especially in the context of a presumption against a finding of contamination).73 Nor does it give any indication as to the weight of the desire to ensure environmental protection, or to reduce regulatory burdens, which would allow such factors to be judged against each other in an assessment of the proportionality of any regulatory act. The instruction to simultaneously take a precautionary, proportionate, cost-benefit focused, localised decision can hardly be considered useful guidance. It certainly does not help predict outcomes.

70 71 72 73

ibid 5 at [1.4]. ibid. ibid 5 at [1.6]. Lees, ‘New Guidance and a New Philosophy’ (n 66) 270.

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Nevertheless, we can see in this guidance, when compared most directly with the waste guidance, a glimmer of hope. Despite its relative lack of use, the contaminated land regime demonstrates the potential for a more rounded, nuanced approach to interpretation that relies not just on aims and effectiveness, but also on principles. Even here, there is significant work to be done analytically to ensure that principles are being treated in a sound way, and not simply as short-cuts to justificatory arguments for expansive approaches to interpretation. Detailed, binding guidance can be useful, but not when drafted like this.

C. Nature Conservation As with the waste and contaminated land measures, the coalition agenda has resulted in recent updates to habitats’ protection policies. The primary policy guidance comes from the recently published Biodiversity 2020 report from DEFRA.74 This document ‘outlines the Government’s vision for the natural environment’75 by ensuring that decisions are taken in a broad, holistic way, rather than in a piecemeal fashion, and by attempting to integrate ‘green thinking’ into general discussions concerning economic growth. The stated mission is to ‘half overall biodiversity loss, support healthy well-functioning ecosystems and establish coherent ecological networks’.76 There is discussion of the burden of regulation. It is stated that, ‘we do not intend to introduce unnecessary burdens or regulations; rather our aim is for the outcomes and priorities to be used as a focus and driver for action’.77 Thus, regulation ought to be applied and interpreted in light of the vague aims outlined in the document. Furthermore, this document directs Natural England to ensure that: [M]anagement of SSSIs and other habitats takes better account of a wide range of species. Natural England will consider the impact of climate change and other long term processes on the existing SSSI network through its Notification Strategy, which will also identify gaps in the present coverage.78

The result of this exhortation for Natural England to ‘step up’ designation in order to ensure full coverage is likely to be unexpected designations where the legal implications of such a step are not fully considered from the perspective of the regulated. The new policy represents a drive for greater coverage. In itself this does not pose a problem. The problem arises where in expanding coverage, Natural England’s discretion as to control over designated land is not properly managed, and its interpretation of its own role is not kept under review.

74 DEFRA, ‘Biodiversity 2020: a Strategy for England’s Wildlife and Ecosystem Services’ (London, DEFRA, 2011). 75 ibid 4 at [5]. 76 ibid 4 at [8]. 77 ibid 17 at [2.3]. 78 ibid 20.

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In addition to this, the specific guidance provided in relation to the sites of special scientific interest (SSSI) system, currently under review,79 is non-binding guidance designed only to provide assistance.80 It serves a very different role to the contaminated land guidance which acts as a supplement to the legislation itself and is in itself binding. The primary content of the guidance is the promotion of a collaborative approach to conservation, prioritising management over enforcement and punishment.81 Thus management notices should only be used in ‘exceptional circumstances, where dialogue and negotiation fail to secure management that maintains the special interests of the site’.82 The guidance foresees damage to the environmental interests of the site as the only motivation for the imposition of a criminal sanction, and only where no other less intrusive method of control can be used. The conservation objectives of the site are the criteria by which enforcement is judged. Intervention, and therefore the potential for judicial review, will only take place in the ‘worst’ scenarios, environmentally speaking. This will mean that the courts, if a prosecution does reach them, would be unlikely to develop a new approach to interpretation in the face of serious environmental damage. The consensus-focused approach has a knock on effect for interpretation. The extent to which a management-focused approach is being taken is revealed in the statistic that in the four years since Natural England was established to 2011, only six prosecutions had been brought.83 The enforcement of the SSSI provisions, and therefore their practical impact, is analysed and measured according to the extent to which action under the regime will be effective in conservation terms. There is no consideration as to whether such action is consistent with previous action, predictable, or decided on the basis of legitimate, participative administrative processes in accordance with legal principle. Again, the guidance promotes an approach to interpretation that relies on purpose. There is little guidance, and what guidance there is relies on environmental protection as the benchmark for good regulation. Natural England has not provided detailed guidance for the purposes of European sites, relying instead on the interaction with SSSI-designation to ensure that the appropriate level of environmental protection is achieved. The review of the guidance when published will likely provide more detail.84 Similarly, there is little guidance concerning the Conservation of Habitats and Species Regulations 2010 (CHSR 2010). The European Commission has however 79 DEFRA, ‘Habitats and Wild Birds Directives: Consultation on Simplification of Guidance in England’ (London, DEFRA, 2012). 80 There are various guidance documents published by Natural England tailored to specific users accessible at Natural England, ‘Sites of Special Scientific Interest’ at www.naturalengland.org.uk/ ourwork/conservation/designations/sssi/default.aspx. 81 Natural England, ‘Protecting England’s Natural Treasures: Sites of Special Scientific Interest’ (London, Natural England, 2011) 19 and DEFRA, ‘Sites of Special Scientific Interest: Encouraging Positive Partnerships’ (London, DEFRA, 2003) 12 at [9]. 82 DEFRA, ‘Sites of Special Scientific Interest’ (n 81) [64]. 83 Natural England, ‘England’s Natural Treasures’ (n 81) 19. 84 DEFRA, ‘Habitats and Wild Birds Directives’ (n 79).

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provided some detailed guidance on the WBD 2008 and the Habitats Directive (HD). In particular, Article 6 of the HD has been considered.85 This determines what actions constitute a ‘plan or project’ for the purposes of the Directive. Although this guidance is directed at the Member States, it is nonetheless useful as a guide, firstly, to the jurisprudence of the ECJ, and secondly, to the requirements of that Directive and therefore to the likely domestic judicial approach to the regulatory scheme as a whole. It states that: In as much as Directive 92/43/EEC does not define ‘plan’ or ‘project’, due consideration must be given to general principles of interpretation, in particular the principle that an individual provision of Community law must be interpreted on the basis of its wording and of its purpose and the context in which it occurs.86

In doing so, it acknowledges that this results in a broad interpretation of the relevant provisions.87 The duty in regulation 19(1) of the CHSR 2010 means that this broad interpretation must also be integrated into the approach taken by the national authorities. Finally, the guidance concerning the Environmental Damage (Prevention and Remediation) Regulations 2009 (EDR 2009) and the Environmental Liability Directive (ELD) must be considered. DEFRA has produced considerable guidance on the EDR 2009,88 and this guidance is linked with that provided by Natural England.89 The guidance is a manual as to the operation of the regime, rather than an explanation as to why it operates in this way. DEFRA specifies that the regulations, ‘are based on the “polluter pays principle” requiring those responsible to meet the cost of preventive and remedial measures’.90 The guidance also explains the interaction between the regulations and other regimes that cover environmental damage. The general approach to the ELD from the European perspective is instructive: ‘[t]he principle of liability applies to environmental damage and imminent threat of damage resulting from occupational activities, where it is possible to establish a causal link between the damage and the activity in question’.91 The central element of the ELD is the causal link between damage and operator. The regulation is therefore premised on the polluter pays principle. This cannot assist in interpretation, however, since the guidance does not examine the meaning of the principle. It is also telling that the guidance admits 85

European Commission, ‘Managing Natura 2000 Sites’ (n 28) [3.5]. ibid [4.3]. ibid. 88 DEFRA, ‘The Environmental Damage (Prevention and Remediation) Regulations 2009— Guidance for England and Wales’ (London, DEFRA, 2009). 89 Natural England, ‘Environmental Damage Regulations’, accessible at www.naturalengland.org. uk/ourwork/regulation/environmentaldamage/default.aspx. 90 DEFRA, ‘Environmental Damage (Prevention and Remediation) Regulations 2009’ (n 88) at [1.9]. 91 EUROPA, ‘Questions and Answers Environmental Liability Directive’, accessible at http:// europa.eu/rapid/press-release_MEMO-07-157_en.htm?locale=en and EUROPA, ‘Environmental Liability’, accessible at http://europa.eu/legislation_summaries/enterprise/interaction_with_other_ policies/l28120_en.htm. 86 87

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the limitations of the Directive: ‘the Directive does not cover it [diffuse pollution] because it would be ineffective and practically impossible to hold liable all those contributing [to it]’.92 This reliance on effectiveness as the justification for the ELD will work hand in hand with the requirement of purposive interpretation outlined by the ECJ. As a matter of interpretation of the key terms, enforcing authorities, therefore, are provided with very little assistance. Once again, uncertainty abounds. Perhaps for this reason DEFRA is currently consulting on simplifying the guidance in England in relation to habitats and wild birds.93 It is admitted in this document that ‘there has sometimes been a lack of clarity over how the requirements should be applied’.94 It is aiming therefore to produce guidance which is ‘simpler and more efficient without compromising the founding objectives of the Directives’.95 This is severely undermined by the guiding principle that the drafters of the consultation document seek to integrate into the guidance. They state that ‘it will establish broad principles to which regulatory decision makers must have regard, particularly in borderline cases. These principles encourage a riskbased approach to implementation that avoids excessive precaution yet is compatible with the Directive’.96 When examined closely, these principles will clearly not result in a shift in regulatory culture. For example, one of the principles is a requirement to take a pragmatic approach. When faced with a ‘borderline’ decision, taking a pragmatic approach is highly unlikely, of its own accord, to point to an answer. Even though the deficiencies in the current approach are recognised, the suggested remedy will not achieve the desired aim. Both the existing guidance and proposed new guidance, in relying on aim, can only but add to the picture of confusion and uncertainty.

D. Conclusions This analysis of the relevant guidance clearly demonstrates that the regulatory culture at the administrative level is one which focuses on effectiveness as the primary driver for interpretation. The drafters of the guidance have recognised the problem of uncertainty. There is an attempt to be coherent, to try to strike a balance between over-regulation and effectiveness, but this attempt fails by trying simultaneously to ensure legitimacy at an administrative level through achieving set goals, and to ensure certainty or predictability. There is a culture in place that suggests that certainty will be achieved by a better articulation of aim. This is not the case. Certainty will only be achieved by a focus on certainty. The dominance of the policy aim obscures this fact. 92 93 94 95 96

EUROPA, ‘Questions and Answers’ (n 91). DEFRA, ‘Habitats and Wild Birds Directives’ (n 79). ibid 1 at [2]. ibid 1 at [3]. ibid 7 at [22].

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III. The Ambiguous Role of the Courts It may be argued however that the purposive approach within the administrative guidance need not necessarily ‘feed into’ the approach of the courts.97 With the exception of the binding statutory guidance for contaminated land, none of this guidance is binding. In order to explain how the approach of administrative authorities and regulators impacts upon the approach to interpretation adopted by the courts, it is necessary to examine the potentially ambiguous role of the courts and the limitations on their control resulting from the judicial review process. The ambiguity of this role is an additional cause of the uncertainty in interpretation. It is trite to note that judicial review as a method of oversight of administrative action attempts to balance legal consistency with discretion vesting in representative authority (or delegated authority), rather than leaving that discretion to the courts. Thus the principles of judicial review have been developed to ensure that the boundary line between decisions which are appropriate for a court to make and decisions which are appropriate for an administrative authority to make, is flexible, but also responsive to the balance of powers in the UK, as well as reflecting expertise. As a result of this, the courts, as has been discussed in chapter five, have tended to defer to regulatory agencies in considering environmental law. They recognise their relative lack of expertise in relation to such decision-making. There is however an important distinction to be made between judicial review of decisionmaking, and the definition of the criteria against which a decision must be made. The fact that this distinction is often overlooked by the courts, using either the principles of judicial review, or the distinction between questions of fact and questions of law, adds to the overall uncertainty. Control over interpretation of the trigger terms for the criminal offences discussed here is not a matter of reasonableness for an administrative authority to decide, but a matter of law, with ‘only one answer’, an answer that must be provided by a court. The failure to recognise this distinction will be tackled by the solution presented in this book. It is tempting in highly policy-based areas to rely on administrative discretion and public participation to provide legitimacy to a decision or interpretation which is made, often, in the face of divergent policy goals, scientific and other evidential uncertainty, and controversy. In doing so, it is understandable also that the courts would utilise non-binding administrative guidance as their benchmark for assessing what constitutes reasonable action. Where the question is one of reasonableness,

97 For literature concerning the impact of ‘soft law’ on judicial approaches in the EU, see, L Senden, Soft Law in the European Community Law (Oxford, Hart Publishing, 2004); J Scott and DM Trubeck, ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ (2002) 8 European Law Journal 6; and E Korkea-Aho, ‘EU Soft Law in Domestic Legal Systems: Flexibility and Diversity Guaranteed?’ (2009) 16 Maastricht Journal of European and Comparative Law 271.

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in fact, this is what the court should do. It is argued here however that such reliance fails to fully appreciate what the principles of judicial review require of a court, and how the rules in this area have been drafted. Instead, in a way which is similar to planning law, the courts should be the final arbiter of the legal meaning of the work. Once the court has determined the definition of the term, it can then be a matter of reasonable discretion for the administrative body concerned to decide whether the facts of the particular case before them meet this definition. This latter decision will then be judged by the court for its reasonableness. Thus, the court defines the standards against which the decision must be made, and then reviews that decision for its reasonableness by reference to those standards. A failure to fully appreciate the central role that the courts should play in the definition of certain key terms where those terms are indeed related to policy goals, contributes to the purposive regulatory culture since it means that the courts are reviewing the definition of the offences as a matter of reasonableness (was the agency’s interpretation of regulation 38 a reasonable one?) rather than as a matter of correctness in law (what does regulation 38 mean? Was the agency reasonable in its conclusion that the offence as defined applied to the particular facts here?). In addition, many of the decisions that are being made in this area are not carried out under the judicial review process. They are, instead, questions of law determined as part of a criminal trial or appeal on the basis of law as part of such a criminal process. In such cases there is no scope for the reasonableness assessment that makes up judicial review. Instead, as indeed is necessary as part of judicial review as has been shown, the courts are required to give a definite and precise meaning to a particular term that makes up an offence and which is therefore central to the potential liability of an offender. The lack of attention in both literature and guidance as to the precise role that courts are undertaking at any particular stage in the process has had the effect of undermining the court’s role, leaving crucial questions of interpretation to be subsumed into wider questions of reasonableness in administrative action. Examination of the case law shows however that the courts do not always consider definitions within the criminal offences to be questions of law.98 This has two consequences. Firstly, it prevents the development of precedent in relation to the relevant definition. If the matter is a question of fact, it does not form part of the binding ratio of the decision. Secondly, it obscures further the responsibility that the courts have to play in tightly defining the boundaries of any particular offence, and gives, as a result, control to prosecuting authorities. It essentially creates a situation where there is a presumption that the prosecutorial definition of the offence is the correct one,99 undermining due process and contributing further to uncertainty. 98 R (Thames Water Utilities Ltd) v Bromley Magistrates’ Court [2008] EWHC 1763 (Admin), [2009] 1 WLR 1247, [27]. 99 E Lees, ‘The Meaning of “Deposit”: Thames Water v Bromley Magistrates’ Court’ (2014) 26 Journal of Environmental Law 1.

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For example, in relation to the habitats’ protection legislation, and the process of granting permission for an operation in relation to designated land, it may be argued that questions such as ‘likely’ and ‘significant’ are matters of reasonable judgment for the local authority. Whether or not something is likely to cause harm is a matter of discretion. But this obscures the fact that there are two steps in the process of assessing whether the enforcing authority exercised its discretion correctly in that case. Firstly, the meaning of likely in this context has to be determined. It may be that the court, as in relation to deposit for the purposes of the waste offences, abdicates responsibility for outlining the meaning of this word, by explaining that the meaning of likely is a question of fact, not law. Thus, the meaning to be attributed to likely can vary from case to case subject only to an assessment whether the enforcing authority that on the facts a negative outcome was ‘likely’ was not so unreasonable that no reasonable authority could have reached that conclusion. On the other hand, and in this author’s view, correctly, the court could conclude that the meaning of the term likely is a question of law. The answer it gives will be binding then according to the rules of precedent. The meaning of likely is not a matter for the enforcing authority’s reasonable discretion. Once the meaning of likely is determined—for example, once it is concluded that likely means that there is a higher chance of something happening than not—then that meaning becomes a statement of law. That is the standard against which the instant enforcing authority and future enforcing authorities must assess the facts of the particular case. It may then be that when looking at all the facts that body concludes that the test of likely is met, and in such a case that judgment, discretionary as it is, will stand unless it is wholly unreasonable. Such a clarification of the courts’ role is missing from the current approach. This contributes to the uncertainty by preventing the development of a clear line of precedent. It also produces a situation where administrative guidance comes to prominence because the court becomes focused on assessing reasonableness in decision-making, rather than correctness as a matter of law. Finally, it produces a situation where there is a presumption in favour of the approach of the regulatory authority since the test is only a reasonableness one. This may be acceptable in a purely regulatory context, but once this approach appears in a criminal regulatory context, it becomes clear that the ambiguous role of the court not only produces uncertainty, it undermines due process. This ambiguity too, twinned with a purposive approach where definitions are given, and a heavily reliance on purpose in administrative guidance, can only be contribute to the overall uncertainty.

IV. Academic Approaches It might be hoped against this background of uncertainty perpetuated by the approach of the ECJ, the administrative guidance, and a failure to unpack the

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precise function of the courts in this area, that the academic literature would strive to ensure some certainty. Some authors do pursue certainty. However, this pursuit is largely purposive in its focus. Certainty is seen as part and parcel of effectiveness. In order to achieve environmental protection at the lowest possible cost, the law must be certain in order to make law-making more effective. This pattern of the conflation of effectiveness and legitimacy, of the primacy of the drive to achieve the stated aims of the regimes in the least costly manner in relation to environmental law, forms the backdrop to the academic approach to the specific regimes considered here. The literature on each of these regimes will be considered in turn. Before turning to this discussion however, it is important to note that this discussion is not to suggest that analysis of the relevant regimes from the perspective of their environmental goals is not worthwhile. It is of course important that such analysis takes place. The point being made here is simply that if certainty is seen as important in itself, as it should be as demonstrated in chapter three, then focusing on effectiveness will not achieve the certainty required. The existing literature, rather than focusing on certainty, looks instead to achieving environmental protection.

A. Waste The majority approach to waste law interpretation is represented by that of Samuels. He argues that ‘[a]ll agree that we must minimise, re-use or recycle waste, because of pollution and environmental damage and waste of resources involved in waste’.100 His analysis begins from the perspective that there is uncontroversial agreement that this is what we want our waste regime to do. He acknowledges ‘that clear decisive principles are hard to tease out’101 but fails to provide any assistance in developing such principles. There is a huge volume of academic commentary on the waste regime, and in particular on the definition of waste, but most articles begin by commenting on the importance of a successful waste regime. From the outset their analysis is coloured by a drive for effectiveness. This springs from the belief in consensus over the direction that the law ought to move in. As Ogley states ‘it would appear that most people agree that there was an urgent and pressing need to move away from our dependence on landfilling’.102 But this does not justify abandoning the search for coherent regulation of waste. In this section it will be shown that the prevailing approach to analysing the waste regime is one that focuses on whether this regime (encompassing

100 A Samuels, ‘The Legal Concept of Waste’ (2010) Journal of Planning and Environmental Law 1391, 1391. 101 ibid 1392. 102 A Ogley, ‘A Wasted Opportunity?’ (2011) Journal of Planning and Environmental Law 10, 10.

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interpretation, enforcement policy103 and regulatory design) can lead to effective and efficient prevention of waste and of pollution or other environmental harms arising from misuse of waste. There are essentially three different kinds of writing on the WFD 2008. Firstly, there are those who consider the Directive and predict what is likely to happen either on a wider EU-level or by reference to specific Member State legislation in an instant case. Secondly, there are those who make an assessment as to the merits of either the WFD 2008 or implementing legislation from the perspective of effectiveness and/ or instrumental clarity. In the sense used here instrumental clarity is taken to mean certainty and predictability in the rules being applied in order to make the law more effective. Finally, there are those who consider explanations and assessments of case law, interpreting the legislation again from the perspective of effectiveness and/or instrumental clarity. The first group is generally engaged in description and analysis. The second group fails to distinguish interpretation from design, and focuses only on effectiveness in any case. The final group, although recognising the importance of focusing on interpretation, has developed an analysis which fails to accord due to weight to the intrinsic importance of clarity, coherence, and certainty. Those writings that fall into category one—notably Pocklington whose extensive writings on the waste provisions represent the most detailed exposition of the current legal position104—can be excused for not assessing the merits of the regulations they are examining since that is not the purpose of their writings which are predictive in their focus. Nevertheless, in these writings regular instances where ambiguities and uncertainties are highlighted can be found. Potential solutions to those ambiguities are suggested, but the criteria against which these suggestions are being assessed as ‘good’ are not articulated. Nor is it clear whether the problem is perceived to be one of design or of interpretation. For example, although Pocklington acknowledges that, ‘the formulation of the definition of “waste” is critical to the success of legislation in this area’,105 he does not go on to highlight that the definition of waste is important for reasons beyond effectiveness. Such a statement overlooks the separation that exists between definition as drafted and definition as applied by the courts. In explaining that the regime is difficult to predict, he does not explain why it matters that the regime be predictable, beyond the fact that this makes it more likely that the regime can be both complied with, and enforced more systematically. In addition, it is clear that he approves of teleological interpretation stating that certain interpretive considerations, ‘have clear and direct links to the aims and effectiveness of the directive and … provide a sound basis for determining the status of the material [as waste]’.106 103 The problem of consistency in enforcement and the discretion of the Environment Agency in this regard is discussed by Abbot. See C Abbot, ‘Waste Management Licensing: Benefit or Burden?’ (2000) Journal of Planning and Environmental Law 1003, 1007. 104 DN Pocklington, The Law of Waste Management, 2nd edn (London, Sweet and Maxwell, 2011). 105 DN Pocklington, ‘The Utility of the Concept of “Waste”’ (1996) Environmental Liability 94, 100. 106 DN Pocklington, ‘“Recovery” and “Recycling” in EU Waste Management Law’ (2000) European Environmental Law Review 272, 274.

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Those writings which explicitly seek to assess the merits of the legislation itself show a tendency to focus on two things. Firstly, they consider the extent to which the structure of the legislation is capable of delivering the goals of waste minimisation and of prevention of environmental damage. For example, Cheyne and Purdue argue that, ‘the purpose of the definition of waste is to enable the discarding of material to take place without risk to the environment’.107 In their view the success the definition of waste is directly related to whether or not the legislation results in discarding of material in such a way that does not harm the environment. Again, Cheyne states that, ‘[g]ood regulation aims to avoid placing excessive costs both on the regulated and the regulators in the course of achieving its objective’.108 The legislation is assessed from the perspective that effective and good are synonymous in the context of environmental regulation. It is far from clear whether these considerations apply to design, to interpretation, or both. By far the largest body of writing on waste however is to be found in the commentary on judicial decisions interpreting the meaning of ‘discard’, the critical element to the definition of controlled waste. Material which has been discarded, must be discarded, or is intended to be discarded, is waste for the purposes of the WFD 2008 (Article 3(1)). Despite the importance of this term, it is not defined in the WFD 2008 itself. There is therefore a considerable body of writing here that focuses on the process of interpretation. Unfortunately, the criteria by which such interpretation is judged, results in a failure to provide certainty. The commentary tends to analyse the content of relevant decisions, and then assess the extent to which the approach to definition taken meets the regulatory aims of the WFD 2008. Choongh and Grekos, for example, state that, ‘the ECJ has sought, understandably, to avoid adopting a definition which may have the effect of circumventing the effectiveness of the Directive’.109 Why is this ‘understandable’? It is never openly discussed why the teleological approach of the ECJ is so passively accepted in the literature. Scotford ‘assumes’ that the purposive approach is the correct one.110 She does not explain why she is justified in making this assumption. The ambiguities and uncertainties in the definition of waste are criticised for failing to comply with rule of law values because the legislation is likely to be less effective. Such values are treated as instrumental values which contribute only to the effectiveness of the legislation. Pike demonstrates this strand of analysis in arguing that: Reaching a definition of waste which is both workable and which provides a high level of environmental protection is of course a very difficult if not impossible task. However,

107 I Cheyne and M Purdue, ‘Fitting Definition to Purpose: the Search for a Satisfactory Definition of Waste’ (1995) 7 Journal of Environmental Law 149, 168. 108 I Cheyne, ‘The Definition of Waste in EC Law’ (2002) 14 Journal of Environmental Law 62, 63. 109 S Choongh and M Grekos, ‘Finding a Workable Definition of Waste: is it a Waste of Time?’ [2006] Journal of Planning and Environmental Law 463, 477. 110 E Scotford, ‘Trash or Treasure: Policy Tensions in EC Waste Regulation’ (2007) 19 Journal of Environmental Law 367, 369.

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legal certainty is both desirable and necessary, and at present the courts have failed to provide such certainty.111

Similarly Cheyne argues that ‘[t]his interpretation would therefore reduce the effectiveness of the regulatory framework by making it difficult to identify the regulated object’.112 Both regard certainty within the regime as critical to achieving a ‘high level of environmental protection’. There is some recognition of the great difficulties that the courts have in interpreting this regulatory regime and of the uncertainty thereby produced however. Tufet-Opi argues that: It is commonly perceived that the present legislative framework for waste policy has many serious flaws. Stakeholders call for a more comprehensive, effective, realistic and coherent set of measures for products entering the waste phase. In order to do this, it is necessary to identify the problems with the current framework.113

The problems, the writer recognises, can go beyond simply the results of the regulation. Stakeholders have voiced that the lack of coherence has resulted in the imposition of a rigid legislative framework, a dearth of clear definitions, a categorisation of waste exclusively based on the intrinsic hazard approach, and a lack of an integrated approach for products entering the waste phase.114

Tufet-Opi calls for a change in our approach to interpretation. Unfortunately, what begins as a rounded analysis of the ‘good’ in the waste regulation, concludes that these virtues of clarity etc ought to be encouraged in a waste context for instrumental reasons. He argues that, ‘[t]he main problem with the current definition is that … it creates obstacles to efficient recycling’.115 There is desire for change, but the law is regarded only as an instrumental tool in bringing about such a change. The main problem is not the barrier to recycling: it is the regulatory failure to provide clear rules. This may be a barrier to recycling, but that is not the ‘main’ problem. This same instrumental approach to rule of law values can be seen in Krämer’s argument that: There is also the need to see that essentially equivalent situations are not being dealt with differently, in order to avoid the borderline between wastes and products being drawn along purely pragmatic lines, that then all too easily follow practical economic interestswhich are not necessarily the same as environmental interests.116 111 J Pike, ‘Waste Not Want Not: an (Even) Wider Definition of “Waste’ (2002) 14 Journal of Environmental Law 197, 207. 112 Cheyne, ‘The Definition of Waste’ (n 108) 66. 113 E Tufet-Opi, ‘Life After End of Life: the Replacement of End of Life Product Legislation by an European Integrated Product Policy in the EC’ (2002) 14 Journal of Environmental Law 33, 37. 114 ibid 37. 115 ibid 37–38. 116 L Krämer, ‘The Distinction Between Product and Waste in Community Law’ (2003) Environmental Liability 3, 11.

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On his view, the process of interpretation must stand as stalwart against the triumph of economic values over the environment. But this is not the courts’ constitutional role, nor is it the task assigned to them when engaging in interpretation. Edwards too has suggested that we need to take care in the definition of waste to avoid uncertainty and unfairness, and that as such we need to pull back from the overly broad interpretation of waste that has been seen in the ECJ case law, to recognise that ‘the definition of waste has its limits’.117 He calls for an integrated waste system with a narrow and certain definition of waste as the best way to ensure responsible waste management. Again, a means-ends analysis is being used, even where rule of law considerations are in play. Krämer, Tufet-Opi and Edwards all recognise the problem of uncertainty, but they do not see that this is a legal as well as a policy problem. There is no acknowledgement of their assumption that environmental protection ultimately should trump certainty. There is however some writing analysing the judicial interpretation of the definition of waste which acknowledges that its criterion for ‘good’ regulation is the extent to which the interpretation will allow the legislation to be effective. Cheyne and Purdue implicitly admit that there are criteria other than effectiveness that must be met when interpreting such legislation.118 They recognise the importance of definitions, highlighting that, ‘definition is always important in law but it is particularly important in a system of regulatory control as it is necessary to define what can and cannot be controlled’.119 They argue that: Whilst it is clearly acceptable to interpret a definition in the light of the policy and objects of the Act, there must still be a limit on how far the scope of the definition can be stretched to achieve that purpose.120

They do not clearly articulate what these other factors are. What is the limit on the extent to which the definition can be stretched? It may be that the limit they envisage is purely a linguistic one. Nevertheless, the admission that there is such a limit does begin to take the discussion beyond effectiveness. In this author’s opinion, it does not go far enough. Furthermore, their analysis of why it is difficult to define waste reveals their allegiance to the purposive approach: The basic problem is that, the more the words are interpreted as requiring an intention to abandon or that substances or objects are excluded if they are still capable of being put to a use, the more processes and activities will be excluded even though they need to be controlled because of their potential risk of damage. This is why the task of defining ‘waste’ is a difficult task, philosophically, semantically and legally.121

117 M Edwards, ‘Environment Agency v Inglenorth Ltd: Environmental Protection Act 1990—Meaning of Waste’ [2009] Journal of Planning and Environmental Law 1621, 1633. 118 Cheyne and Purdue, ‘Fitting Definition to Purpose’ (n 107). 119 ibid 149. 120 ibid 151. 121 ibid 152. See also 167–68 where reliance on effectiveness is very clear.

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As mentioned, Scotford too is clear she is seeking effective regulation stating that: ‘[t]his article assumes that a purposive approach to the Directive is a sound one’.122 There is an admission and an understanding that effectiveness is not the only potential benchmark by which we can judge the legislation in question. She then takes her analysis a stage further and concludes that: ‘the Court has developed an unprincipled purposive approach to the Directive, calling into question the legitimacy of its decision and undermining the important environmental purposes that Directive is designed to pursue’.123 Elsewhere she has recognised the ‘continuing uncertainty for economic operators who need to understand the costs and regulations involved in setting up operations’.124 This recognition is wed to analysis of the likely successes of the WFD 2008 in promoting a diminution in the production of waste. She highlights the weaknesses in the current formulation of the purposive approach125 but assumes, fundamentally, that it is the correct route to take. She criticises the ‘unprincipled purposive approach’126 because it ‘call[s] into question the legitimacy of its decisions and undermin[es] the important environmental purposes that the Directive is designed to pursue’.127 Thus an explicit link is drawn between legitimacy and effectiveness. Again, the goal of the legislation is the be-all and end-all. The assumption regarding purposive approaches to interpretation remains firmly in place. We must move forward from this discussion of effectiveness. There is a pressing need to articulate our assumptions as to what makes good law. This book asks not how does the WFD 2008 work, nor how has it been interpreted at judicial level, but rather how should we be interpreting this Directive, not simply to ensure that it meets its aims, but also that it accords with the principles of good legal regulation. This task has not been taken up by those considering the waste legislation to date. Rather such analysis has proceeded on the rarely articulated, and never questioned, assumption that the teleological approach is the best process for interpretation. Ensuring certainty would become more than instrumentally valuable. Similarly, the processes involved in reaching an interpretation, decision or application of the rules too would no longer be simply of interest as a forum within which the environment may be most effectively protected, but as crucial in and of themselves as a part of the democratic process. One thing that this book does share with the writings discussed here, however, is an acceptance that formulating a definition of waste which is ‘good’ by any standard is a gargantuan task. Much academic writing on this topic has only really got as far as outlining why it is so difficult to formulate such a definition. The scale of the problem facing the drafters of such legislation is certainly very great. Control 122

Scotford, ‘Trash or Treasure’ (n 110) 369. ibid 388. 124 E Scotford, ‘The New Waste Directive—Trying to Do it All … an Early Assessment’ (2009) 11 Journal of Environmental Law 75, 84. 125 Scotford, ‘Trash or Treasure’ (n 110) 368. 126 ibid 388. 127 ibid. 123

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of waste must be multi-dimensional, is difficult to enforce, and is highly complex. The economic realities of waste creation are compounded by the legal complications in this area. Not only is the WFD 2008 required to be applied harmoniously across the Member State jurisdictions, it must do so in a way that does not unduly interfere with the free movement of goods in the internal market. In addition, the controls are predicated on the limitations of the European project as a whole, and on the requirement that EU legislation complies with the principles of proportionality and subsidiarity. Proportionality demands effectiveness. The unique legitimacy (or lack thereof) that is drawn on by the EU legal order depends on achieving the aims for which the legal order was established. This means that not only does the ECJ take a teleological interpretive approach, but also when looking at the operation of EU legislative measures, we are always conscious that EU legislation only exists in order to achieve an end. Furthermore, the use of criminal law means that our understandings of the waste regime are coloured by the penalties that can be imposed for breach. The breadth or otherwise of the definition of waste is determinative of criminal liability. The severity of the potential punishments, including prison terms, mean that there is an understandable desire to ensure that the punishment is only imposed to back up a regime that can effectively tackle the problem it is set against. It would be capricious to impose such a punishment in relation to a regime that cannot achieve benefits for society and so we try to ensure that such benefits are achieved. There is also here a linguistic problem. The legislation is drafted in many languages, each having equal merit, even though the terminology may have subtle differences.128 When trying to come to a firm conclusion as to the meaning of one word, ‘discard’, which is formulated in these different languages our linguistic helplessness makes us turn to the purpose of the legislation to try to determine, what did the drafters mean? These pressures, complex and pervasive in relation to the waste regime, push analysis of the regime in the direction of effectiveness. These difficulties provide an explanation, although perhaps not a justification, for why effectiveness dominates the discussion surrounding waste. The general approach of an effectiveness approach is enhanced in this particular context. The same comments could indeed be made in relation to the other regimes considered in this book. These difficulties do not, however, mean either that we should give up, or that any search for certainty is doomed to fail.

B. Contaminated Land In comparison with the waste provisions, there is little by way of analysis of the contaminated land regime.129 The majority of writing on this subject has as its 128 As highlighted above, this is also a factor in relation to habitats’ protection. See AG Sharpston in Case C-258/11 Sweetman v An Bord Pleanála (n 25) [19], [46], and [53]. 129 S Vaughan, ‘The Contaminated Land Regime: Still Suitable For Use?’ [2010] Journal of Planning and Environmental Law 142.

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focus an explanation of the operation of the regime. There has been some work on the interpretation of the terms of the regime, eg Fogleman,130 Etherington,131 Lawrence and Lee,132 and Lochery (myself, published as Lochery).133 This writing, however, has tended to attempt to solve either a practical problem facing the enforcers of the regime, such as a lack of funds, or is examining the philosophy behind the regime. Little writing exists examining the design of the rules from a theoretical perspective. For example, although Vaughan acknowledges that the contaminated land regime is extremely complex in its operation,134 he does so as an aside to explain why it may not have been as successful in practice, than might have been hoped, rather than focusing on this complexity itself.135 He also notes the retrospective elements of the regime and the no-fault standard for liability, issues which at the very least affect the extent to which the regime can be said to comply with the rule of law.136 He does not take this analysis further. His main criticism of the regime is its lack of practical impact.137 Vaughan aims to demonstrate that the regime is not effective, or is not as effective in practice as it could be, not to suggest an alternative approach. One aspect of his writing of interest here however is his acknowledgement that the operation of the regime is not homogeneous across local authority areas.138 ‘From the outset of the Pt 2A regime, there was a lack of uniformity of approach’.139 This lack of uniformity, along with the complexity noted by Vaughan, and the rule of law problems, all factor into how we should analyse this law, but this is not openly discussed. Instead the analysis of the regime moves into discussion as to practical enforcement. Again we are left without clear principles to help in the interpretation of the regime beyond a desire for practical effect. Etherington’s approach too demonstrates a clear failure to distinguish such principles in relation to interpretation as distinct from design. He considers the role of the statutory guidance and assesses the legitimacy of using such binding statutory guidance.140 Etherington looks at the merits of using guidance like this in the context of a regime based on framework legislation and administered by executive 130 V Fogleman, ‘Circular Facilities (London) Ltd v Sevenoaks DC: the Meaning of “Knowingly Permitted” Under the Contaminated Land Regime’ (2005) Journal of Planning and Environmental Law 1269. 131 L Etherington, ‘Mandatory Guidance for Dealing with Contaminated Land: Paradox or Pragmatism’ (2002) 23 Statute Law Review 203. 132 D Lawrence and R Lee, ‘Permitting Uncertainty: Owners, Occupiers and Responsibility for Remediation’ (2003) 66 MLR 261. 133 E Lochery (the author, published as Lochery), ‘Does the Contaminated Land Regime Impose Stewardship Obligations on Owners of Land’, LLM thesis, University of Dundee. 134 Vaughan, ‘Suitable For Use’ (n 129) 153. 135 ibid 156. 136 ibid 146. 137 ibid 142. 138 ibid 150. 139 ibid 150. 140 Etherington, ‘Mandatory Guidance’ (n 131).

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bodies. He questions the democratic mandate and levels of scrutiny that the regime has undergone, but does not examine the relevance of interpretive approaches in assessing such legitimacy. He suggests that, ‘one result of this is that attention may be directed towards the rule-making stage, rather than decision-making, and focus particularly on central government rule-making, with public participation in the rule-making process a key element in providing legitimacy’.141 He focuses on procedural legitimacy, but suggests that this be derived from public participation at the parliamentary stage. He therefore neglects to distinguish this from later stages of the regulatory process. He argues that: It appears that the rationale for using the new rule-type goes to the heart of some of the theoretical issues in rule-making—in particular balancing certainty with fairness (through flexibility)—whilst also raising questions regarding the constitutional basis for rule-making. It also appears that the process by which a rule is made can be important in meeting the objectives of the rule-makers as the resulting rules.142

Thus in analysing the structure of the regime, Etherington highlights that there are a number of factors that go into the merits of the ensuing regime beyond the extent to which it meets its aims, but fails to articulate whether these considerations apply or having any bearing upon the judicial context. He also considers the difficulty that scientific uncertainty poses for contaminated land controls. He concludes that, ‘the nature of environmental decisions present particular problems in seeking to balance certainty and flexibility when devising legislative rules’.143 When explaining how best to improve regulation, he argues that, ‘the tendency of lawyers to seek to formalise purposive approaches suggests that rules and certainty are desired in order to satisfy lawyers’ own needs’.144 The idea that legal analysis, in seeking certainty, is self-serving is deeply unhelpful, and it cannot be a legitimate criticism of those searching for certainty in interpretation. Etherington does mention interpretation145 but his focus on effectiveness and achieving aim through flexibility means that he does not distinguish between good regulatory design and good interpretation—rather, for him, a good contaminated land regime is one which is flexible, simple and effective.146 Pontin and Wilmore’s writings also fail to consider different measures of success for the contaminated land regime in relation to interpretation.147 Their focus on the decision-making process is not prompted by a desire to examine the legitimacy of the interpretation of the relevant regulations. The regime appears to be acting as a motivator within the planning system. Thus Pontin and Wilmore 141

ibid 206. ibid 203. ibid 204. 144 ibid 212. 145 ibid 216. 146 ibid 212. 147 B Pontin and C Wilmore, ‘Displacing Remedies from Environmental to Planning Law: the Enforcement of Contaminated Land Legislation in Britain’ (2006) 6 Yearbook of European Environmental Law 97, 102. 142 143

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conclude that ‘difficulties in measuring the outcomes of contaminated land regulation open up the attraction of an alternative normative framework, shifting attention onto the decision-making process’.148 What they do not do however is take their normative framework beyond this process. Interpretation is therefore neglected to an extent. There is however some writing concerned with interpretation. Fogleman attempts to assist interpretation of the regime, and bases her approach to this on the intention of Parliament. She concludes that Parliament did not intend for the terms in the regime to be interpreted narrowly.149 This approach is explicitly purposive. Parliament’s aim is advocated as the main driver behind interpretation. Lawrence and Lee have also written on the interpretation of the regime, specifically the meaning of ‘knowingly permit’ and ‘cause’ for the purposes of identifying Class A persons, and have done so too in the light of the aims of the regime.150 The aim, to ensure that the polluter pays, is said to underlie the interpretation of the regime. The polluter pays principle, being a principle of environmental law, is an end in itself. The principle is used here as a shorthand for a series of justificatory arguments explaining why a particular person may be liable for a harm. Their very detailed analysis regarding the meaning of these terms, which calls on case law from other areas of law, acknowledges that, ‘there is considerable confusion … as to the precise meaning of the legal concept of “knowingly permitted”’.151 In trying to solve this uncertainty, their focus again is on aim, and legislative intent broadly defined: These references suggest two important policy considerations in interpreting the statutory language. The first is that liability for knowingly permitted pre-existing contamination is intended to be limited and is certainly not thought, by Viscount Ullswater at least, to attach to any owner whose land happens somehow to be contaminated to that owner’s knowledge. The second issue, however, is that there seems to be a desire on the part of the legislature at the time of the Bill to include as an appropriate person those falling within the ‘positively allowing’ interpretation of knowingly permitted.152

The aim of Parliament is seen as justifying a broad and less certain approach to interpretation of a key term within the regime. Policy, and aim, trump certainty, and again the purposive approach is assumed and not questioned. The authors’ approach is, in their words, ‘in tune with the policy of the legislation’.153 As can be seen above in relation to waste therefore, there is no questioning of the assumption that aim should drive design and interpretation. Often these two stages are not even distinguished. Uncertainty is seen not as an intrinsic problem, but as a barrier to effectiveness. There is a failure to grapple with processes of

148 149 150 151 152 153

ibid 102. Fogleman, ‘Circular Facilities (London) Ltd v Sevenoaks DC’ (n 130) 1273. Lawrence and Lee, ‘Permitting Uncertainty’ (n 132) 268–69. ibid 262. ibid 268. ibid 276.

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interpretation from the perspective of certainty as intrinsically valuable is in evidence in the writings concerning the contaminated land provisions.

C. Nature Conservation Finally, similar comments can be made in relation to the nature conservation provisions. Here, once again, existing writings neglect to discuss criteria for good interpretation in such a way that promotes certainty over and above environmental protection. The content, culture, and structure of these provisions, and the difficulties that have been experienced in attempting to apply them, go some way to explaining why there has been such a strong focus on the goal of habitats’ protection as the best and only way to analyse the regime. The appeal of reliance on the aim of the statutory provisions here is especially strong thanks to their complexity. The unifying aim helps to make sense of the regulatory framework, but it is not the best way to ensure optimal regulation. Additionally, the majority of the existing writing is either descriptive, or, given the complexity and perceived failures of the existing provisions, concerned with designing a new approach to habitats’ protection. The dominance of the effectiveness discourse can be seen when these writings are examined. Such writings in their account of what would constitute ‘good’ regulation do not turn their comments or queries to questions of interpretation. Krämer, for example, begins his approach to assessing the nature conservation provisions from the perspective that: ‘[t]he environment has no voice of its own. Transparency and public discussion are a very effective means to preserve, protect and improve the quality of the environment’.154 His aim is to ensure not that the law is good law but that it is a good tool to manage environmental problems. He thus concludes that public participation in decision-making is required to improve the practical effectiveness of the regimes. Last too takes this approach when she considers the degree of effectiveness of the provisions.155 She concludes that the criticisms of the regimes are unwarranted because there has been a good degree of success.156 She does not however address the critical question as to whether the provisions can be criticised from perspectives other than their environmental outcomes. The law is fragmented, complex and being interpreted in an unprincipled and inconsistent manner, but this is not discussed. Wilmore takes this even further, and argues ‘[a] management as opposed to legal approach is no less valuable an approach if it brings with it 154 L Krämer, ‘The European Commission’s Opinions Under Article 6(4) of the Habitats Directive’ (2009) 21 Journal of Environmental Law 59. This approach is also the basis of Young et al empirical study into the relationship between stakeholder involvement and biodiversity outcome. They assume that a ‘good’ outcome is better biodiversity protection. See J Young et al, ‘Does Stakeholder Involvement Really Benefit Biodiversity Conservation?’ (2013) 158 Biological Conservation 359. 155 KV Last, ‘Habitat Protection: Has the Wildlife and Countryside Act 1981 Made a Difference?’ (1999) 11 Journal of Environmental Law 15. 156 ibid at 33.

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interest, funding and above all an enhanced environment’.157 But this is simply incorrect if the management approach brings burdens that cannot be foreseen. Behind this discussion is the continuing unspoken assumption that effectiveness is the most appropriate criterion for judging state interventions. The result of this is that no focus is turned to questions of interpretation. This is particularly prominent when writers advocate the adoption of rights-based or private law mechanisms for the protection of habitats. For example, Rodgers, highly critical of voluntary approaches to habitats’ management, argues that, ‘[t]he delivery of a basic level of environmental management for the rural environment is a public policy objective that should not be dependent on market forces for its effectiveness’.158 He criticises the existing rules for failing to provide sufficient protection to the natural environmental when compared with the strength of property rights.159 His comments therefore bear upon questions of interpretation for the courts—how should the judiciary balance private law entitlements against criminal sanctions?—but the process of interpretation that would need to be adopted is not discussed. Elsewhere, Rodgers has also argued that implementation of the HD through the SSSI model contained in the WCA 2008 is flawed because ‘the Wildlife and Countryside Act model … has not proved particularly effective’.160 Arguably, homogeneity and accessibility of rules (part of the presumed motivation for using the SSSI system to protect special protection areas/special areas of conservation (SPAs/SACs)) are more important than the environmental outcomes. It certainly cannot be assumed that environmental protection is the most important issue in implementing a system of habitats’ protection. Neglecting questions of interpretation obscures this fact. Reid too focuses on attempting to bring together public law regulation of habitats with other mechanisms that can achieve such protection, eg through conservation easements.161 He therefore recognises the need for legal structures, but attempts also to harness private forces. His focus is on building new strategies for protecting nature.162 Two issues arise from his approach. Firstly, there is no doubt that he is driven to assess alternative mechanisms to achieve the end of conservation of nature due to failures in effectiveness of the current system.163 The ‘notoriously fragmented’164 state of such conservation measures too prompts

157 C Wilmore ‘What’s in a Name? The Role of ‘National Park’ Designation’ (2002) Journal of Planning and Environmental Law 1325, 1333. 158 C Rodgers, ‘Property Rights, Land Use and the Rural Environment: a Case for Reform’ (2009) 26S Land Use Policy 134, 140. 159 See also C Rogers, The Law of Nature Conservation (Oxford, Oxford University Press, 2013) 311 160 C Rodgers, ‘Managing Natura 2000: Priorities for Implementing European Wildlife Law’ (2001) Journal of Planning and Environmental Law 265, 267. 161 CT Reid, ‘The Privatisation of Biodiversity? Possible New Approaches to Nature Conservation Law in the UK’ (2011) 23 Journal of Environmental Law 203 and CT Reid, ‘Conservation Covenants’ [2013] Conveyancer and Property Lawyer 176. 162 Reid, ‘The Privatisation of Biodiversity’ (n 161) 205. 163 ibid 205. 164 ibid 206.

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his assessment of the alternatives. In failing to address questions of interpretation, this novel approach will likely fall into the same trap as the existing regimes. Complexity is not a problem for those subject to the regime if they are able to obtain clear and helpful advice. Fragmentation may be messy, but it does not demand a change of approach with the same fervour as uncertainty does. Secondly, Reid does not appear to see effectiveness as the sole criterion that must be met by the alternative mechanisms before we can conclude that they are ‘good’. He argues that, ‘the desirability of such new methods must, however, be given careful consideration in terms of suitability to the needs of biodiversity and issues over coherence, transparency, accountability and public participation’.165 He does not therefore look only to effectiveness, but interpretation is neglected. Furthermore, the other qualities Reid looks for in regulation are sought for their instrumental value. Thus public participation is important, as it was for Krämer,166 in part because it ensures that the most important elements of our natural heritage are given priority and in part because it renders conservation more popular which in turn makes the legislation more likely to succeed.167 The focus is on achieving a practical outcome, that of environmental protection. There is some focus on interpretation however. The work of Ledoux and others is worth considering here given its rather oblique approach to assessing what constitutes good regulatory design in the field of environmental law.168 Their approach is to consider how the UK should go about interpreting and implementing the EU directives into national law, and the basis on which they suggest such an interpretation should be made ought therefore to be informative here given the direct concern with questions of interpretation. Their approach however is not explicit as to what would constitute good interpretation. Some clues can be derived from the text. For example, it is stated that, ‘although in theory some instruments are assumed to be efficient, they might not be feasible in practice because of a variety of constraints’.169 Later it is argued that, ‘it produces economies of scale in terms of finance, expertise and environmental effectiveness’.170 Both of these statements seem to suggest that their motivation for a more flexible interpretation of the directives is primarily to achieve more effective environmental regulation at a lower cost. A more explicit focus on interpretation can be seen in the work of Verschuuren and of Stokes. Both of these authors discuss outcomes of judicial interpretation, but they do not analyse whether the instances of interpretation that they cite are good or bad. For example, Verschuuren argues that the ECJ’s approach to Article 165

ibid 203. Krämer, ‘European Commission’s Opinions Under Article 6(4)’ (n 154). 167 ibid 226–27. 168 L Ledoux et al, ‘Implementing EU Biodiversity Policy: a UK Case Study’ (2000), CSERGE Working Paper GEC 2000–03, accessible at www.cserge.ac.uk/publications/cserge-working-paper/gec-200003-implementing-eu-biodiversity-policy-uk-case-study. 169 ibid 18. 170 ibid 25. 166

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6(4) of the HD ‘has rendered the discussion on the word ‘significant’ purely academic’.171 It is not clear whether he considers such flouting of the statutory language to be permissible or not. Similarly, Stokes, in discussing the Court’s handling of scientific uncertainty in Waddenzee172 and the precautionary principle, fails to make clear whether and why the ensuing approach is good or bad as a matter of interpretation.173 Alder also attempts to take a more interpretation-focused approach.174 He argues that: The common law provides a set of values against which statute law must be interpreted. These values are capable of giving environmental rights a privileged status in the same way that values such as freedom of expression are given special weight. This influences the development of the law and also requires Parliament to express itself in very clear language should it wish to prefer other values … Underlining these [the environmental principles] is the principle that there should be a ‘high level of protection’, thus indicating that environmental values are superior to ordinary legal values even if they are not fundamental in the strict sense. This interpretive role of the common law is especially important in the context of rural conservation and preservation. Statutory law confers few specific enforceable powers. It concentrates upon conferring discretionary powers to designate.175

This approach contains much that is useful, but ultimately again it sees the ‘values’ established by the common law as being only of instrumental worth. The common law values or principles mentioned are certainly ones which should be used to interpret the statute law and they are discussed below,176 but not if they prioritise environmental protection, and are to be shortcuts to justify such an outcome. We should not simply invent a common law principle of environmental protection on the basis that environmental protection is particularly important. Alder’s approach in this sense is akin to that in Gunningham and Grabosky whereby although there are many factors which make up legitimate regulation, effective environmental protection is central to that legitimacy.177 It may be important in policy terms, but that does not mean that in terms of principles of law that it is paramount. This approach runs into conflict with the true role of principles as outlined below, and as such cannot be seen as a strong contender upon which to build a framework of interpretation that goes beyond effectiveness. Indeed, the only discussion of interpretation of the habitats’ protection provisions that truly analyses the problem of the purposive approach to interpretation 171

Verschuuren, ‘Shellfish for Fisherman or Birds’ (n 24) 280. At n 18. 173 ER Stokes, ‘Liberalising the Threshold of Precaution—Cockle Fishing, the Habitats Directive, and Evidence of a New Understanding of “Scientific Uncertainty”’ (2005) 7 Environmental Law Review 206. 174 JE Alder, ‘Legal Values and Environmental Values: Towards a Regulatory Framework’ in C Rodgers (ed), Nature Conservation and Countryside Law (Cardiff, University of Wales Press, 1996). 175 ibid 10–11. 176 See ch 7 in this book. 177 See pp 184–85 in this book. 172

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is that of Harte.178 He highlights that, ‘in interpreting legislation concerned with any subject, whether the approach used is purposive or literal, what is obvious to one judge may not always be obvious to another. Indeed, it may seem, obviously, to mean the opposite. This danger of uncertainty may be greater where a purposive approach is adopted as it was here’.179 He is totally correct when he argues that: Doubtless all the judges had a concern for the environment and, as Steyn LJ indicated, doubtless they shared that concern with the Bird Man of Alcatraz! However, their different approaches to the construction of European legislation highlight a variety of possible approaches in balancing the importance of wildlife conservation against other public interests.180

Unfortunately the further step of developing an environmentally sensitive approach to interpretation is not taken. The problem of a lack of focus on interpretation, and on the dangers of the purposive approach is highlighted. However, in this author’s opinion, even Harte’s approach does not go far enough.

V. Conclusions This chapter has therefore demonstrated the existence of a regulatory culture which prioritises the achievement of environmental goals above compliance with values such as predictability and coherence. This can be seen in the approach of the ECJ which, in the environmental context, sees its role as a creative one— manipulating the terms of legislative provisions to ensure that a high level of environmental protection is achieved. Partly as a result of this and partly as a result of the intuitive appeal of focusing on aim, the administrative guidance too relies heavily on this consideration. It is suggested that better articulation of aims will lead to more certain outcomes. The academic literature in general supports such an approach, advocating more effective or efficient regulation through relying on environmental purpose as the guiding criterion for good law, and good interpretation of that law.

178 JDC Harte, ‘Nature Conservation: the Framework for Designating Special Protection Areas for Birds’ (1995) 7 Journal of Environmental Law 245. 179 ibid 273. 180 ibid.

7 The Solution: A Change in Approach to Interpretation The solution to the uncertainty in dealing with environmental legislation is the adoption of a common law restrictive approach to interpretation which primarily relies on the language used in the statute itself. It then considers the mischief tackled by the provision and develops a judicially-defined concept of environmental harm. The traditional common law approach to interpretation is at its roots linguistic. What do the words of a promulgated regulatory statement mean, and how should this be applied in practice? Adopting this approach to environmental legislation gives rise to a framework which can and does take account of purpose, but it does so in a specified way and at specific times, and therefore increases certainty. The principle of environmental harm developed contextualises and specifies ‘purpose’. This chapter demonstrates the operation of such an approach to interpretation. There are five elements to the common law process: linguistic analysis; search for the mischief being tackled within the context of the regulatory system; consideration of the rule as part of a framework or system of rules; examination of pre-legislative or explanatory materials; and only as a last resort, the policy aim of the regulation. These stages will be examined in turn. The framework that is outlined will be familiar to the common lawyer. It is contextualised here however. It is the examination and understanding of environmental harm that provides the greatest degree of both novelty and assistance in guiding interpretation at the domestic judicial level. The different stages allow for the promotion of transparency, accessibility, and coherence. The common law approach is expressed most clearly in the principles outlined in Re Heydon’s Case.1 This case has been described by McLeod as expressing an ‘unashamedly purposive approach to legislation’.2 It looks not at purposes in general however, but to the purpose as expressed in the words of the legislation. In this sense, the common law ‘purposive approach’ relies on language in a way that the European Court of Justice (ECJ) teleological approach and the doctrine of effet utile do not. It is this contextualisation of the aim within the actual language 1

Re Heydon’s Case (1584) 3 Coke 7a, 76 ER 637, 638. I McLeod, ‘Literal and Purposive Techniques of Legislative Interpretation: Some European Community and English Common Law Perspectives’ (2004) 29 Brooklyn Journal of International Law 1109, 1111. 2

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used that is central to this new approach to interpretation. As McLeod goes on to argue: Both the English common law and Community law approach the task of legislative interpretation in a purposive, or teleological way. However there is a significant difference between the two systems, in that lawyers operating within the Community legal system may refer explicitly to articulated statements of legislative purpose. By way of contrast, while the English legal system provides some aides to identifying legislative purposes, those purposes are almost always less explicitly identified. It follows that both the identification of legislative purposes is more difficult in English than in Community law, and that it is more difficult to be confident of the accuracy of any identification which is made.3

Any such difficulty is not however a ground to criticise the English legal system. Rather it allows the judiciary to develop an approach to ascertaining purpose which is sheltered, if not immune, from shifts in administrative policy, and which can therefore act as a means to promote consistency in definitions over time. This is referred to here as the principle of environmental harm. It is the common law approach to identifying the ‘mischief ’ or harm tackled as expressed in the environmental context. The legal principles of certainty and equality of application are integrated into this search. The integration of legal tradition into this framework is itself useful. ‘Relying on legal traditions increases the degree of legal certainty and predictability, all the more so if such interpretation becomes characteristic in a legal system’.4 It is therefore useful when looking at the national courts in particular for them to use the traditional common law approach to interpretation since this will best meet the ‘expectations of participants’ and will also ensure that the judiciary is experienced in such a process. Of course, if the traditional approach produced practical or normative difficulties, then the fact of its being the ‘usual’ approach would not be enough, in itself, to warrant its adoption in a particular context. However, as will be seen, the traditional approach in the common law here would actually increase compliance with rule of law values. Before considering these five stages in turn, an important issue must be addressed, and that is the degree of generality at which the framework can operate. Is this, as Conway advocates, a cross-sectorial approach which can be applied to all European and national law? He argues that contextual variations: [B]eg the underlying question of the normative basis for them and the question of an overall normative understanding of the scope of interpretation and of the legitimate reach of judicial power. Why should interpretation vary from one case to another? Does it not undermine formal justice, i.e. that like cases be treated alike, and the rule of law ideals of certainty, predictability and objectivity, if the reasoning in and outcome of cases can be changed from judge to judge and case to case without being determined by

3

ibid 1134. G Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge, Cambridge University Press, 2012) 158. 4

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a distinctly ‘legal method’, instead being determined by subjective judicial assessments of the desirability of consequences?5

In one sense, it is argued, this is correct. It is important to have some normative consistency in an approach to interpretation. Linguistic analysis should indeed be given priority. The linguistic approach has a strong practical claim, allowing it to be given such priority. Per MacCormick and Summers: When competing with other arguments, the linguistic arguments are relatively difficult to cancel or relatively less often subordinated pursuant to a mandatory role or maxim of priority, or relatively more difficult to outweigh, than other arguments. Their superior comparative force is presumably attributable mainly to the great weight of the substantive rationales behind them, including the democratic legitimacy of the legislature.6

Conway too supports its adoption. What must be recognised, however, is that ‘ordinary meaning’ is a necessary function of both meaning and context. It is not possible to ignore the context within which words are being used.7 Thus, Conway’s advocated approach pays insufficient heed to context. In prioritising the generality of his scheme, he underplays its potential usefulness. Thus, the framework must be one which is sensitive to context. The general approach, ie a prioritisation of textual analysis, can, naturally, be applied writ large, so too can an appeal to systematic coherence and consistency. The principle of environmental harm however is necessary to the framework to ensure that the very real problems with regulation of the environment—property versus environmental protection, speed of regulatory change, multi-jurisdictional overlap, and regulation of risk—are properly catered for within this framework. The approach described here is one specifically designed to assist in interpretation of rules which aim at the regulation of the use of land. That is deliberate. The principle of environmental harm may well be of use in relation to other areas of environmental control, but it is important to allow for consistency within the same context as a starting point. This framework, specific and tailored to that context as it is, will allow this to happen.

I. Linguistic Analysis The first stage in this process therefore is a linguistic analysis of the relevant statutory provision, drawing heavily on the common law legal tradition. This approach can be seen most clearly in R v Judge of the City of London Court.8 Per Lord Esher MR:

5

ibid 50–51. DN MacCormick and RS Summers, Interpreting Statutes: A Comparative Study (Aldershot, Dartmouth Publishing, 1991) 481–82. 7 See ch 3. 8 R v Judge of the City of London Court [1892] 1 QB 273 (CA). 6

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If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity. In my opinion, the rule has always been this—if the words of an Act admit of two interpretations, then they are not clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the legislature did not intend to lead to an absurdity, and will adopt the other interpretation.9

Thus the language of the statute itself must always come first, and in cases of ambiguity, then, and only then, will other issues be taken into account. Again, in the Sussex Peerage Case:10 If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe mean of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer (Stowel v. Lord Zouch, Plowden, 369), is ‘a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress’.11

The final sentence of this statement is critical for the second stage of the process.12 It is clear that linguistic interpretation alone may not lead to an answer. ‘The meaning of a rule, in other words, [although] derived from the language of the rule [is also derived] from sources extrinsic to the language of the rule’.13 Nevertheless, the first step remains the language used however. As Steyn argues: The aim of interpretation of a legal text, whether it be a private instrument or a public statute, must be to derive a meaning from its nature and contents. The mandated point of departure must be the text itself. The primacy of the text is the first rule of interpretation for the judge considering a point of interpretation.14

This approach to legislation is evinced by Milton Keynes DC v Fuller and McVeigh.15 Where the term being interpreted is an ordinary word of plain English, the interpretation of that word is simply a question of English language, and not a question of law. The terms used are given primacy. The final point to note in relation to linguistic interpretation however is the relevance of the criminal law context. This context is of particular significance given that the offences considered are all subject to the imposition of a criminal sanction. Under the traditional approach, in a criminal context, the courts take a narrow approach. The language, as enacted into legislation or statutory instrument, must make it clear that a particular action will give rise to criminal liability. 9 10 11 12 13 14 15

ibid 290. Sussex Peerage Case (1844) XI Clark & Finnelly 85, 8 ER 1034 (HL), 1057. ibid. See pp 144–67 in this book. D Fisher, Legal Reasoning in Environmental Law (Cheltenham, Edward Elgar Publishing, 2013) 10. J Steyn, ‘Pepper v Hart: a Re-Examination’ (2001) 21 OJLS 59. Milton Keynes v Fuller [2011] EWHC 1967 (Admin), [2011] Env LR 31.

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Even where, as in the contaminated land regime, liability comes from breach of a remediation notice, or in relation to habitats from the performance of a prohibited operation, the precursor to liability, such as the existence of contaminated land, or the fact of an activity meeting the definition of ‘operation’, must be ascertainable in advance. The necessity of taking a narrow approach was made clear by James LJ in Dyke v Elliott:16 No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought.17

The first element in the framework is the language of the statute itself. In the criminal context this must be considered narrowly because this is the interpretation which an individual would be expected, at least, to understand. Linguistic analysis in interpretation is well established as an element of practical legal reasoning. Even at a purely linguistic level, and even where interpreting narrowly, however there are bound to be disagreements as to the meaning of a particular word and the extent to which a judge is entitled to take a broad or narrow meaning of a word. As Dickson highlights: Interpretation is a Janus-faced concept, encompassing both a backward-looking conserving component, and a forward-looking creative one. In other words, an interpretation of something is an interpretation of something—it presupposes that there is a something, or an original, there to be interpreted, and to which any valid interpretation must be faithful to some extent, thus differentiating interpretation from pure invention—but it is also an interpretation of something, i.e. an attempt not merely to reproduce but to make something of or bring something out of an original.18

As a result, although it is clear that the language of the statute must be a starting point, it can only ever be a starting point, even where the court is instructed to take a narrow approach. ‘The language of a rule is by itself neither sufficient nor necessary to reach a conclusion about its application’.19 Nevertheless, recognition and faithful exploration of the language of the statute will begin to introduce certainty into the law. In some cases the courts have looked at the language of the statute carefully, in others they have not. What is important, above all else, is that consistency is achieved. That consistency must start with reliance on a narrow linguistic approach. It is the text of the legislative provisions that will always provide the starting point for analysis. A narrow approach to these terms is more likely to produce consistency.

16

Dyke v Elliott, (1871–73) LR 4 PC184. ibid 191. J Dickson, ‘Interpretation and Coherence in Legal Reasoning’ (Stanford Encyclopedia of Philosophy, 2001), accessible at http://plato.stanford.edu/entries/legal-reas-interpret/#RolIntLegRea. 19 Fisher, Legal Reasoning (n 13) 12. 17 18

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The particular common law approach to linguistic interpretation of definitions can assist further in achieving this consistency through reliance on the doctrine of stare decisis such that the case law itself becomes binding on its own terms, rather than having continual recourse to the text of the statute on each fresh occasion. Rather, the court, in prioritising a linguistic assessment of the statutory provision, can begin to provide a detailed guide to what the terms used within that statute mean over time. This allows for contextualisation of the terms used (something discussed further below), but also for necessary consistency over time. The approach to the linguistic meaning of the term cannot alter radically from case to case and judge to judge without the detailed rules relating to precedent being invoked. Therefore, it is important to highlight that the goal of this approach to interpretation is not to return to the language of the statutory provision in isolation with each new case. Instead, the aim is to always ensure that the courts consider the language of the statutory provision as a matter of primacy in the first instance and that future courts then build upon this in the normal manner of the common law. Taking a linguistic approach is not inconsistent with taking a common law approach which relies on precedent, as the case law discussed here demonstrates. What is necessary is: (a) that language is interpreted textually, not purposively; and (b) that when a court makes this linguistic interpretation, future courts should have reference to that when making their decision and build upon that incrementally if needed, without ‘starting afresh’ on a case-by-case basis, as takes place currently.

II. Mischief It is almost impossible however to simply ascertain the meaning of a word without reference to the context within which it is used, and what it was being used for by those who used it. For this reason, even when pursuing a strict linguistic approach to interpretation, the common law courts have recognised ambiguity, uncertainty, absurdity, and most importantly, the necessity of ascertaining what ‘mischief ’ the statute attempts to tackle. Thus, where a word is used throughout legislation or within a particular context, where that context is relevant to interpretation, the court must take account of that. In doing so, however, they will be bound by (at least), ‘the rule of law and the principle of constitutionality’.20 In addition, because it is almost impossible to say what a provision means without reference to context, as Vogenauer outlines when discussing the pre-Pepper v Hart (see below) situation: ‘[if] the language was unclear and ambiguous … [the courts considered] the “mischief of the statute”, legislation in pari materia, or the legislative antecedents of the provision in question’.21 Even before Pepper v Hart, where 20 21

Steyn, ‘Pepper v Hart’ (n 14) 61. S Vogenauer, ‘A Retreat from Pepper v Hart? A Reply to Lord Steyn’ (2005) 25 OJLS 629, 630.

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required, the court would consider the ‘purpose’ of the statute in question when interpreting it. Crucially, they would do so simply as one of the factors amongst others that would be relevant to interpretation. Even more importantly, the understanding of purpose is narrow—the ‘mischief ’—and does not encompass broad policy aims. The common law approach to interpretation is one which, traditionally at least, did not prioritise the telos of the statute.22 Instead, it looks at what harm is being described by the particular words legislated for. Understanding this stage of the interpretive process is the most important element of the approach being outlined here. It is critically different from the teleological/effet utile approach because it gives rise to an autonomous, judicial construct of environmental harmfulness that can impose structure and homogeneity across boundaries. It produces certainty as a result, but it can also be tailored to meet the specific challenges raised by the environmental context. The mischief rule, in the environmental context, is central to the operation of the framework for interpretation. The mischief rule, in its original incarnation, allows the judiciary to interpret statutory provisions with the ‘gap’ in the common law that the statute sought to fill in mind. For contaminated land, for example, the Environmental Protection Act 1990 (EPA 1990) was introduced in part at least to fill the gap in the common law identified by Lord Goff in Cambridge Water Co v Eastern Counties Leather plc.23 The mischief tackled, in this sense, was the failure of negligence principles to encompass strict liability for serious and long-term polluting activities. The mischief rule can be understood as representing a hybrid teleologicalliteral approach to interpretation, which allows the judiciary to examine the aim of a legislative measure, but only the aim as actually expressed in the terms used in the legislation. If the words do not, according to their plain and natural meaning, cover a particular activity, the judiciary is not entitled to expand its understanding of the words to achieve the policy aim of the legislation. If, however, it is not clear whether the words do so cover an activity, the judge must then take a close look not at the individual words, but at the entire provision to ascertain what kinds of harms it is intended to cover. It must articulate those harms. The court ought not to undertake this task with a preconceived idea as to what the legislators were trying to achieve. The mischief, or harmfulness, tackled is a concept which cannot be coloured by the purposes of the legislature except as expressed in those words. It is coloured by context, and by the words of the statute alone.

A. Understanding Harmfulness in the Environmental Context In order to perform this task in an environmental context, the courts must explore what is distinctive about harm in the field of environmental/land use controls.

22 23

Millar v Taylor 98 ER 201 (KB). Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 (HL), 305.

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What kinds of harms do the environmental offences cover (not, what did they aim to cover)? In order to demonstrate this, this section considers notions of harm, and goes on to explain harm in an environmental context. The next step is to consider how this understanding of harm interacts with the criminal law context. In order to explore this, the meaning given to harm here will be contrasted with that given to harm by other environmental law scholars. A comparison will also be made with nuisance to show what lessons can be learned from that regulatory context, one which is also concerned to control uses of land. This allows a drawing together of environmental protection and land use, to begin to develop an understanding of what the harmfulness, and thus the ‘mischief ’ being tackled here is. It will then be shown that this understanding is able to account for the uncertainty, lack of scientific knowledge, and the administrative discretion that are in play in environmental regulation. Finally, the interaction between this understanding of harm as a tool to assist in interpretation, and that expressed in the environmental principles will be explored. It will become clear that if the courts approach the notion of mischief tackled by a statute in an environmental context from the perspective of that context, then increased certainty can definitely be achieved.

(i) Harm and Harmfulness A more concrete definition of harm is required. It is impossible to articulate a precise definition of harm that will always give a ‘bright line’.24 Feinberg has attempted a definition of harm (in the context of the harm principle as a principle of regulatory intervention) that reflects this.25 This definition has been rearticulated in a useful way by Warner. Harm in his view is a: Setback … to interests—where: (1) there is no justification of (sic) excuse for the setback; [and] (2) the setback violates a right of B’s (that is, there is a certain sort of justification for not setting back another’s interest in that way).26

The key to this approach to harm is recognising that harm contains within it notions of justification and value.27 It is not an objective test. Furthermore, the notion of harm relies on the idea of ‘a setback to interests’. Even before exploring the specific challenges of value-laden environmental law and policy, it is clear that harm is subjective, flexible, and ever-changing in its meaning. This is what will make it useful to the courts in developing a consistent jurisprudence. The outcome can be flexible, but the principles, and the process, will be predictable and clear.

24 R Warner, ‘Liberalism and the Criminal Law’ (1992) 1 Southern California Interdisciplinary Law Journal 39, 41. 25 J Feinberg, Harm to Others (Oxford, Oxford University Press, 1984) 105–06. 26 Warner, ‘Liberalism and the Criminal Law’ (n 24) 45. 27 TS Aagaard, ‘Environmental Harms, Use Conflicts, and Neutral Baselines in Environmental Law’ (2011) 60 Duke Law Journal 1505, 1507.

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The acceptance that harm depends upon value-judgments explains why the criticisms of the harm principle in the environmental context advanced by Levine28 and Aagaard,29 which are discussed in detail below,30 do not pose a problem to the usefulness of the principle as a guide to interpretation. The subjectivity of harm can be used to our advantage. If the notion is context dependent, it means we can fine-tune it to the particular context with which we are concerned—here, land use. To understand harm, we need therefore to understand that it is highly subjective, and that therefore there is room for disagreement about its content, but that the shape of such disagreement is moulded by a clear understanding as to what is meant by harm.

(ii) Harm in the Environmental Context The first stage in developing an understanding of harm in an environmental context is to recognise that there is a critical distinction between harm—which is a conclusion reached through principled legal reasoning—and damage. O’Hear’s outline of ‘harms’ in criminal law demonstrates this.31 Harm, as will be seen, is related to the rights of persons. Damage can be considered a detrimental change to the environmental status quo. O’Hear outlines seven categories of ‘harm’.32 These are: (1) immediate physical injury to people; (2) future physical injuries to people; (3) emotional distress due to fear of future injury; (4) disruptions in social and economic activities; (5) the occurrence of remediation costs; (6) property damage; and (7) ecological damage. Each of these ‘harms’ is highly complex, and each can occur on a ‘risk of ’ or ‘actual damage’ level. This highlights that to understand ‘harm’, a distinction must be made between harm as a legal construct and damage. Damage is the physical effect on land, persons, or property. Risk of damage is not damage in and of itself. Risk of damage can however constitute harm. Harm, if defined according to Feinburg and Warner’s approach,33 does not take place as a matter of physical reality. Harm is a change in the construction of the interests of a group or individual. As a legal construct therefore harm is substantively different from damage. O’Hear’s approach does not rely on this distinction. He sees non-harmful damage as being less worthy of liability because the damage is less, rather than, although he does not use these terms, because there is no harm.34 This is also a critical distinction that is overlooked by the existing judicial approach to interpretation. 28 A Levine, Engaging Political Philosophy: From Hobbes to Rawls (Oxford, Blackwell, 2002) 161. See also P Mavrokonstantis, ‘A Critical Evaluation of Mill’s Proposed Limits on Legitimate Interference with the Individual’ (2009) 8 Law and Society Journal of University of California, Santa Barbara 87. 29 Aagaard, ‘Environmental Harms’ (n 27). 30 See pp 151–53 in this book. 31 MM O’Hear, ‘Sentencing the Green-Collar Offender: Punishment, Culpability, and Environmental Crime’ (2004) 95 Journal of Criminal Law and Criminology 133. 32 ibid 160 ff. 33 See p 146 in this book. 34 O’Hear, ‘Sentencing the Green-Collar Offender’ (n 31) 170.

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The principle of O’Hear’s categorisation however—the idea that there are more or less serious harms—makes it clear that there are easy cases and hard cases in terms of determining that a particular act or omission meets with the definition of harm expressed in the principle of environmental harm. The less serious the damage, the less likely it will constitute a setback to an individual’s legal interest. In some cases, it will be difficult to draw the dividing line. Such a question would be difficult in normal circumstances, but in an environmental context it is made even more so by the existence of relevant damage which is damage done not to human interests, be that human health, or human property, but to ecological systems. To understand harm therefore the relationship between legal interests and damage to the environment must be explored. In addition, even when the distinction between harm and damage is drawn, the collective, disparate, cumulative, and uncertain harms to legal rights and interests that arise in an environmental context still pose difficulties of outlining a definition of harm. When understood simply as harm to the environment—ie when conflated with damage—Aagaard is perfectly correct that harm is useless in assisting our understanding.35 Lin highlights that ‘[e]nvironmental problems, however, often cause harm that is latent, less direct, and less obvious’.36 Any understanding of harm must account for this additional layer of complexity. Finally, the account of harm given has to accommodate risk.37 Risk-based regulation can be interpreted in line with the understanding of harm developed here. Since ‘[r]isk-based regulation … is premised on collective harms and operates to prevent harm before it occurs’,38 collectivity and uncertainty in terms of ‘harm’ to the environment require the development of a coherent concept of harm that is sensitive to, and reflective of, the specific nature of environmental problems. In order to account for risk, the fact that harm as defined is implemented through a legal principle must be acknowledged. Risk can be incorporated into such a principle in two ways. Firstly, the principle of harm as a basis for interpretation only weighs in one direction. It does not demand a certain outcome. Thus, where a risk is very difficult to establish, understanding of the mischief tackled may discourage the imposition of liability for causing such a risk, but it does not forbid it. Instead, where clearly worded, the statute could impose liability in an environmental context even where there is no discernable harm. The principle is to be applied by the courts as a matter of interpretation, not by the legislature as a matter of design. Secondly, the existence of risk of damage in itself can undermine legal interests because it reduces confidence in such interests and can therefore constitute harm. Recognition of this helps tailor the harm test to the context in which it must be

35

Aagaard, ‘Environmental Harms’ (n 27) 1509. AC Lin, ‘The Unifying Role of Harm in Environmental Law’ [2006] Wisconsin Law Review 897, 907–08. 37 ibid 910. 38 ibid 911. 36

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employed, rendering its use more certain. These factors must all be taken into account when giving content to harm in an environmental context. This is not a question of explaining environmental damage. It is explaining an autonomous concept which ought to be developed by the courts—the mischief tackled by environmental regulation or ‘the principle of environmental harm’. The court will firstly assess the range of meanings the statute is capable of supporting, narrowly constructed. It will then assess whether those meanings fall within this definition of harm, as developed over time, and therefore whether the principle of environmental harm is engaged.

(iii) Property and Land In order to refine this principle further, the relationship between property in land and environmental damage must also be explored since environmental damage will cause damage not only to defined environmental interests, but in a more anthropological sense, will also impact upon property rights. One way to understand when and why environmental damage constitutes harm to others is through an exploration of the idea of ‘the land community’, ie the collective of persons and groups with legal rights and interests in land.39 Such a notion of the land community can be used to assist in identifying two thresholds for intervention in relation to each of the regimes. Firstly, the relationship between the individual and the land on which any action takes place is relevant to liability under these three regimes. This can be explored through the notion of a community of holders of rights in land. Secondly, the concept of the land community helps in developing a more complex understanding as to what is of value on the land, and therefore what actions will threaten not only the environment, but also the integrity of rights in that land. The land community helps to identify relevant features of the ‘legal state’ of the land that must be protected. The land community is therefore useful in advancing our understanding of environmental regulation in a way which is sensitive to the structures of property law. The idea of the land community relies heavily on Honoré’s explanation of group obligations.40 The land community is the collective of rights-holders in land. The land community, as a group, in order to maintain the group, has to ensure that the obligations and rights that make up the rules of that group are

39 E Lochery (the author, published as Lochery), ‘Does the Contaminated Land Regime Impose Stewardship Obligations on Owners of Land’, LLM thesis, University of Dundee. Frazier uses this terminology, but the meaning he gives to the concept is very different from the sense in which it is used here. He includes non-human users of land within his definition of the land community. See TW Frazier, ‘The Green Alternative to Classical Liberal Property Theory’ (1995–1996) 20 Vermont Law Review 299, 320. 40 T Honoré, Making Law Bind (Oxford, Clarendon Press, 1987).

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enforced.41 If these rules are not enforced, then the group will fall apart.42 Thus the group is justified in obligating its members to keep the rules of that group. For example, the group is justified in using coercion to ensure that the boundaries in place in that group are maintained since this is a pre-requisite for membership of the group. This is concerned with the coordination rules of the group. How does this relate to the definition of environmental harm? The community of landowners depends on mutual reinforcement of the integrity of rights in land for its existence. The members of the group have an interest in the maintenance of that group. Therefore, any action by a member of the community that threatens the integrity of those rights is detrimental to the existence of the group. As a result, the integrity of those rights depends not only on the fact of ownership, but also on the quality of that ownership, and on the maintenance of land which does not threaten the health and safety of those who hold rights in that land. Similarly, land which threatens neighbouring landowners’ land is detrimental to the integrity of those rights. Therefore, any action which undermines the quality of land, even if only to person A’s land, poses a setback to B’s interests, not because of the environmental damage done per se but because it makes it more likely that C, D, E, and F may also undermine the quality of their land such that B’s right in his own land is under threat from the misuse of neighbouring land. It is harmful for B, through his justified interest in being a member of a thriving community of landowners, for A to mistreat A’s own land, where that mistreatment threatens the overall integrity of the rights that B possesses. This threat comes from the generalised threat posed to the group. B has a continuing legal interest in the flourishing of the group. Understanding harm as related to the notion of the land community allows for an accommodation of risk and collectivity, without conflating harm and damage to the environment. It is a set-back to A’s interests for B’s property rights to be taken from him or undermined by risk without due process and for B to have no recourse in this situation because it weakens A’s faith in the system protecting his own rights. This understanding, allows us to get to the bottom of the problem of collectivity, uncertainty and risk. The definition of harm here therefore recognises: (a) the distinction between harm and damage; (b) can account for collectivity, disparate and cumulative harms; and (c) can accommodate risk. It is therefore a definition of harm tailored to a specific context such that it can be useful in interpreting environmental offences. By taking account of the collective issues that face rights holders in land, we can therefore better develop an approach to understanding harm in relation to land which is sensitive to the property law elements of environmental regulation outlined in chapter two. Reliance on the land community in this way does not mean that other factors are not taken into account when developing the principle of environmental harm, but rather provides a mechanism for understanding some elements of that principle. 41 42

ibid 39. ibid.

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(iv) Interaction with Criminal Law The environmental law-criminal law frontier must also be taken into account in building this definition of environmental harm, and is especially problematic because of what environmental law has to regulate. As Lazarus argues: Even the most cursory review of … environmental law and criminal law reveals several obvious tensions confronting the development of an environmental criminal program. Criminal law requires more demanding proof to convict, but environmental-law makes such a showing problematic because of scientific uncertainties and fragmented decisionmaking authority. Criminal law emphasizes settled norms, while environmental law constantly changes and aspires for fundamental and dramatic change. And, although criminal law requires clear, determinate, and readily accessible legal standards, familiar to the general public, environmental law is replete with obscure, indeterminate, and highly technical standards, the meaning of which few can claim genuine mastery. None of these tensions means that there is something ‘wrong’ with environmental law; most of its features are justifiable. There are legitimate, often unavoidable, reasons for this conflict inherent in both the subject of environmental pollution and this nation’s institutional structure for law-making. But regardless of the merits of their origins, the above tensions testify to the need for reconciliation and some mutual accommodation of competing interests in the development of environmental criminal law.43

These issues do not mean that the search for legitimacy in regulation should be abandoned. Mutual accommodation is needed, of course, but principles should be central to this accommodation. Certainty should not be sacrificed to effective regulation. A compromise must be reached. Currently such compromise is not possible as there are no overarching principles to explain the lines along which such a compromise can be made. As a result, Lazarus’ approach is both instructive, but also under-inclusive in its explanation of how criminal and environmental law must adapt (or be adapted through the process of interpretation) in order to meet the regulatory challenges that both give rise to. If effectiveness is the only goal, once again law’s internal logic is ignored. The interaction between principles of environmental law and principles of criminal law then would be resolved on an outcomes basis, not on a principled basis. This overlooks the central role that principles, and indeed the harm principle, play in the criminal law context. Understanding the criminal law context assists in the development of the notion of the environmental mischief.

(v) Comparison with Existing Approaches to Environmental Harm Thus harm, when based on group interests, relies on setbacks to those interests. By filtering the property rights elements into the definition of environmental harm, we can better tailor our approach to the context within which environmental law is operating. In addition, the environmental law we are considering punishes 43 RJ Lazarus, ‘Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law’ (1995) 83 The Georgetown Law Journal 2407, 2445.

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causing a setback to such interests through criminal sanction for punishment. It must therefore be a clearly demonstrable setback to the group’s interests. Construction of harm in this way is vastly different from the current approach to harm in environmental law. The idea that harm should be used as a guide to understanding environmental law, has been considered by Lin.44 He argues that ‘environmental law has developed as a series of responses to demonstrations of harm’45 and highlights that ‘if harm is present or anticipated, the harm principle provides a well-established justification for a legal response’.46 He continues, ‘[i]f harm is absent, one implication might be that the situation in question is beyond the proper reach of the law’.47 Thus far, his approach tallies with that advocated here, even if his focus (design, rather than interpretation and analysis) is different. He goes on to analyse harm in environmental law. His ultimate conclusion is that the scope of harm in an environmental context is so wide that it cannot act as a guide to conduct. ‘Ultimately, the harm principle’s primary function in environmental law may not be to demarcate discrete areas of civil life free of government involvement’.48 This conclusion is only necessary because of the definition of harm to which he commits himself. Rather than accepting that some environmental damage ought not to be considered as ‘harm’ within the scope of the principle of environmental harm, he attempts to include all that we might like to prevent within the scope of harm. Thus all environmental regulation is justified by the harm principle, and therefore all environmental regulation should be interpreted broadly. His approach does not provide any help to those attempting to interact with existing environmental regulation. Indeed it provides no guide as to what can constitute a legitimate expression of state power, beyond the moral justification found in prevention of environmental damage. A narrower notion of harm can return harm’s ‘usefulness’. Any narrowing of environmental protection that results is not necessarily a reason not to use a clear and narrow understanding of harm. The breadth of Lin’s approach means that he is unable to give his definition of harm sufficient content to be useful. Lin’s attempt does not harness the potential utility of harm, and instead takes all regulatory interventions to protect the environment to be justified in their scope. He re-adjusts his definition of harm to meet existing interpretations of regulation. Here the argument is the opposite: we should alter our interpretation of regulation by drawing upon common law principles of interpretation, relying on constitutionalism and embodying harm, as a means to render environmental offences more certain, more coherent, and more in tune with those values expressed in the rule of law. Harm can therefore be useful, despite Lin’s argument. In fact, harm can be considered especially useful in this context for the very reason that ‘[e]nvironmental

44 45 46 47 48

Lin, ‘Unifying Role of Harm’ (n 36). ibid 898. ibid 900. ibid. ibid 984.

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law concerns itself largely with the prevention or correction of harm’.49 Given the focus in much environmental discourse on how to effectively prevent ‘environmental harm’, we need a coherent definition for such harm. We should tie our justifications for action and our interpretation to harm. ‘A coherent articulation of the concept of harm thus can strengthen the foundation and clarify the reach of environmental law’.50 We can therefore develop a coherent articulation of harm whilst also accepting that harm is firstly, value-laden, and secondly, context dependent. Aagaard argues we should not rely on the harm principle to assist us in understanding environmental law as it is a normative concept. Lin agrees: ‘[h]arm is neither objective, nor is it subject to a universally applicable definition. Rather, “harm” is a normative concept that reflects underlying social judgments about the good and the bad’.51 But this need not cause us to abandon harm. Rather it is a good framework through which to articulate these normative concepts, but only if such concepts are clearly articulated. Environmental ‘harm’ is normative, but that does not make it ‘analytically unclear’52 as long as we have a stable understanding of how our normative judgments operate within the harm principle framework. The land community can provide this stable framework and ought therefore to form the basis of the search for ‘mischief ’ in the process of interpretation. In demonstrating how such a search might take place in practice, it is useful to draw out certain elements of land use which can cause harm to neighbours. To do so it can be useful to consider existing common law treatment of this question in the shape of nuisance. Such an examination helps, firstly, to give the harm principle definite content, but more importantly it also demonstrates that a fully worked-out approach to the harm principle can avoid being so broad as to no longer be useful. In using the internal logic of law as developed through the common law, the principle of environmental harm can be given defined content. New scientific knowledge can be used to update this in the context of environmental damage, without losing the central understanding of the importance of persons to harm.53 Considerations of the rules on nuisance can help with an understanding as to what constitutes relevant damage to land, the relevant relationship with the land, and also the process of risk assessment. Such an examination is merely an example of how the common law reasons in relation to harm. Recent case

49

ibid 898. ibid 900–01. 51 ibid 901. 52 Aagaard, ‘Environmental Harms’ (n 27) 1507. 53 Tribe argues that, ‘that in resolving environmental issues we should go beyond the familiar, comfortable conclusions we reach by the style of reasoning which assumes the preeminent status of human beings in the physical world’. Perhaps in deciding what we are going to protect we do need to do this, but that does not mean that we necessarily should do this when interpreting criminal law regulatory interventions”. See L Tribe, cited in TP Terrell, ‘Flatlaw: an Essay on the Dimensions of Legal Reasoning and the Development of Fundamental Normative Principles’ (1984) 72 California Law Review 288, 290. 50

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law on nuisance, including Lawrence v Fen Tigers54 demonstrates that the common law does struggle with nuisance and its relationship with modern land use controls. Indeed the practical relevance of the tort to modern regulatory conditions has been questioned. Nevertheless, the common law approach to nuisance demonstrates a common law approach to environmental issues in an era before regulatory intervention. It shows how the courts, when given a central role in the development of rules, rely on inductive reasoning by analogy, but do so in a way which is sensitive to changes in scientific knowledge. Thus the consideration of some of the rules in nuisance that follows is designed not to be a model for how to carry out interpretation in environmental law, but rather to be an illustration of the common law process at work in relation to land use. Before undertaking such an exploration it is important to make clear that it is not being argued that the rules on nuisance are perfect, or always certain. We are looking here not at the ease of applying the rules as explained to the facts, but at the ease of explaining the major premise, in explaining the relevant norms and their content and in particular the aim of this section is simply to highlight some elements of property and land use that must be relevant to questions of interpretation in relation to the environment. Furthermore, it is also not suggested here that nuisance provides a complete model for interpretation for environmental regulation—there are contextual issues that would make that impossible—and the interaction between judicial review and criminal law here adds a layer of additional complication. It is useful however to consider some aspects of nuisance law as a guide to how to interpret a norm based on an exploration of the harm being tackled by that norm. Orts notes that: A formal law, the law of nuisance, has long been used to resolve particular disputes. Formal principles of nuisance law have proven remarkably stable over time. But the very stability of nuisance law and its singular focus on litigated disputes raise problems. Although useful within its scope, nuisance law cannot easily address large environmental issues, such as widespread air and water pollution.55

This singularity of focus, although insufficient as a means to regulate the environmental problems in itself, can assist in identifying what is important about land use and controlling such use, as well as providing a link between the so-called ‘new’ law of environmental law, its unfamiliar principles, and its lack of maturity; and the better understood law relating to nuisance. As Latham and others have argued: ‘overlap [with] traditional tort law principles … can result in statutory and common law working in harmony’.56 54 Lawrence v Fen Tigers [2014] UKSC 13, [2014] 2 WLR 433. See E Lees, ‘Lawrence v Fen Tigers: Where Now for Nuisance?’ [2014] Conveyancer and Property Lawyer 449. 55 EW Orts, ‘Reflexive Environmental Law’ (1995) 89 Northwestern University Law Review 1227, 1256. 56 M Latham, VE Schwartz and CE Appel, ‘The Intersection of Tort and Environmental Law: Where the Twains Should Meet and Depart’ (2011) 80 Fordham Law Review 737, 773.

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The following section outlines some elements of harm in a land use context, to allow a thread of principled, and therefore legitimate, interpretation to run through the entirety of our law in this area, whatever its source. It looks at three issues—the relevance of rights in land, damage as harm, and risk. This will reveal the types of actions and problems that have been considered by the law of tort to threaten the overall integrity of the land community such that it is possible to begin to build a framework for interpretation of statutory material establishing criminal offences as a means to control the use of land on the basis of such features. It draws on some nuisance case law to demonstrate how the courts articulate such issues, but it does not suggest that this case law is anything more than one element that should be built into this principle. (a) Relationship with Land Firstly, the relevance of the particular relationship with the land will be considered. The majority of claims in private nuisance involve the use of neighbouring land which is interfering with the claimant’s land. The ‘power boundary’ between the neighbours is thus regulated by nuisance. When considering land use controls therefore, one element that must be accounted for is the relationship between land rights and control of that land such that responsibility for harm is related to those property rights. This can be seen clearly in the relevant case law. Sedleigh-Denfield v O’Callaghan57 concerned the ‘continuation of a nuisance’ by an occupier. A drain was inadequately protected from being blocked by leaves. During a storm, a blockage in the drain caused flooding on the claimant’s land. The interaction between landowners was considered by the court. Lord Atkin stated that: ‘nuisance is sufficiently defined as a wrongful interference with another’s enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself ’ (my emphasis).58 Similarly, Lord Wright argued that ‘the gist of the present action is the unreasonable and unjustified interference by the defendant in the user of his land with the plaintiff ’s right to enjoy his property’.59 Their Lordships’ focus therefore was whether, in regulating the actions of those with rights in land, the actions under consideration overstepped the liberties of the defendant right-holder such that they harmed the claimant right-holder’s interests sufficiently to warrant legal intervention. The ‘boundary’ between the two properties (here referred to as the ‘power-boundary’ to signify the non-physical nature of this boundary) was constituted by the extent to which the defendant was permitted to act in such a way that interfered with the claimant. Similarly, in Rapier v London Tramways Company,60 Kekewich J remarked that the defendants ‘may acquire land, they may erect stables, they may keep any number of horses, they must do what is necessary; but they must do it subject to this, 57 58 59 60

[1940] AC 880 (HL). ibid 896–97. ibid 904. [1893] 2 Ch 588 (CA).

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that they must not incommode their neighbours’.61 The court determined that the power-boundary between these two parties would not permit the defendant to cause a very strong smell regardless of the public utility of the activity being performed by the defendant. Although the defendants had good cause to use their land in the way indicated, in order to maintain equality between those with interests in land, such that the community of landowners could remain intact, the court concluded that there are certain activities that simply cannot be carried out in a particular locality. This reasoning is present too in the smallpox hospital cases of the late nineteenth and early twentieth centuries. Metropolitan Asylum District v Hill considered the general idea that the private individual’s right to freedom from interference by his neighbours was paramount.62 Lord Blackburn stated that: Though … I think that it an incident to the use of a habitation in a town that the occupier must bear the necessary risks of inmates of a neighbouring habitation falling ill of a contagious disease, I do not think that it is an incident that he is to submit to his neighbours wilfully, though for very laudable motives.63

Thus, although becoming ill does not cross the invisible boundary between rightholders, wilfully bringing contagiously ill persons onto your land will indeed go beyond what can be permitted in the community of landowners if the system is to run in a balanced and ‘fair’ way.64 Finally in any discussion of nuisance and the relevance of property, it is necessary to refer to the approach of their Lordships in Hunter v Canary Wharf to the question of how nuisance polices the interaction between members of the land community.65 The starting point, as Lord Goff explained, is that: As a general rule, a man is entitled to build on his own land, though nowadays this right is inevitably subject to our system of planning controls. Moreover, as a general rule, a man’s right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour’s enjoyment of his land.66

But, and this is the key, such building can be prohibited, despite planning permission according to the rules of nuisance.67 Nuisance, at least in part, therefore has as its role the policing of the interaction between neighbouring landowners. This is plainly evident in the approach taken in the case law. It is part of the notion of harm in this area that has been 61

ibid 596. Metropolitan Asylum District v Hill (1880–1881) LR 6 App Cas 193 (HL). 63 ibid 205–06. 64 Interestingly, the later decision in A-G v Corporation of Nottingham [1904] 1 Ch 673 (ChD) demonstrates the flexibility of the nuisance jurisdiction by responding to scientific advances which recognised that the distance of the hospital from the neighbouring houses and the care taken at the hospital to avoid spreading the disease was sufficient to mean that the running of the hospital in this case was not a nuisance. 65 [1997] AC 655 (HL). 66 ibid 685. 67 Wheeler v Saunders [1996] Ch 19 (CA) 28 per Staughton LJ. 62

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developed over time. ‘The overwhelming majority of cases decided in private nuisance involve not just one [i.e. the claimant] but two occupiers of land’.68 One of the primary roles of the tort of nuisance is in establishing the threshold at which the defendant’s actions on his own land go beyond what can be permitted from the point of view of other holders of rights in land.69 If it is accepted that this is (one of) the roles of private nuisance, it is easy to see that if nuisance polices the power-boundary, it is acting to ensure the smooth continuation of the land community giving equal weight to individual rights-holders. Whatever the public benefit of a particular activity (subject to statutory intervention), the defendant landowner can only behave within the bounds that the land community ought to permit. Otherwise it cannot be said that the members of that community are treated equally despite equally ‘strong’ rights. The discussion of such cases shows that the courts are aware that the relationship of a person with land brings with it associated responsibilities to neighbours. Merely being a visitor on this land does not bring such responsibilities. To be a member of the land community, property rights, or at least rights to control land are required. The interaction between you and a neighbour’s property rights is balanced along the power-boundary. A person with rights in land can only subject his neighbour to so much interference. Similarly, a person with rights in land, in the environmental context, can only do so much damage to that land before the integrity of the rights that he has is threatened. The members of the land community are therefore defined by their rights in that land. This of course puts occupiers into a complex position. The meaning of ‘occupier’ in the legislation considered here has not, to date, received much case law attention.70 The land community, and the rules on nuisance, can be used to assist in the interpretation of this term. (b) Damage as Harm An examination of the rules of nuisance can also reveal the sorts of damage that are considered harmful. The purpose of this discussion is not to establish the exact boundary line provided in all circumstances by the tort, a task which would be extremely difficult71 and probably futile given the inherent flexibility of nuisance, but rather to establish the types of considerations that the courts are having regard to. This should help to build up a more comprehensive picture of what exactly a fully-functioning land community requires by way of coordination, and therefore the sorts of actions that are considered harmful. Two key issues will be considered: seriousness and repetition/continuity. In order to build up this picture it is necessary first to demonstrate that nuisance, 68 G Cross, ‘Does Only the Careless Polluter Pay? A Fresh Examination of the Nature of Private Nuisance’ (1995) 111 LQR 445, 446. 69 ibid 449. 70 Sweet v Secretary of State for the Environment [1989] 2 PLR 14. 71 M Lee, ‘What is Private Nuisance’ (2003) 119 LQR 298.

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as Lee argues, is fulfilling more than one role within the context of neighbourinteraction.72 It covers emanations, physical damage and amenity harm and the boundary between what is and what is not acceptable, and the considerations that go to determining this are different in these different contexts. In addition, the complex relationship between nuisance and negligence (a topic that will not be covered here) makes it difficult to discern whether a particular interaction is governed by the rules concerning landowners, or by rules governing individual conduct. This does not mean however that the examples provided by nuisance cannot be useful in giving content to the principle of environmental harm. The first issue to consider is that of ‘seriousness’ of damage. Relevant to this is the extensive discussion as to whether emanations, such as smell or smoke, will be above that threshold of permitted neighbourly activity, such as to attract liability in nuisance. For smell we can once again refer to Rapier v London Tramways Company and the ‘stink’ producing stables.73 The test, per Lindley LJ in the Court of Appeal, is whether ‘the smell is so bad and continuous to seriously interfere with comfort and enjoyment’.74 This test does not really move the discussion on since it could be said that this is simply a re-phrasing of the question as to whether there is a nuisance from the claimant’s perspective. The smell is a nuisance where it seriously interferes with the claimant’s comfort and enjoyment, but it is also going to be an interference with the claimant’s comfort and enjoyment as allowed to him by law as a holder of a right in land where it goes beyond that which is permitted under the rules of nuisance. In other words, the scope of the claimant’s enjoyment, as well as the scope of the defendant’s permitted activity, are defined by the rules of nuisance. If smell did not constitute a nuisance, then equally the claimant is not able to have the comfort and enjoyment of land ‘smell-free’—it is not part and parcel of his property right. Nevertheless, it is clear from the approach of the judiciary that a ‘small’ amount of interference will not suffice. To constitute a nuisance, a degree of seriousness is required. Non-serious interferences do not cause harm as they do not threaten the rights of the landowner. By inference, non-serious interferences do not therefore threaten the land community either. We can however go beyond simply stating that a nuisance will be a nuisance when it interferes sufficiently seriously with the claimant’s land to constitute a nuisance. Assistance in this can in fact be derived from the first part of the quotation from Lindley LJ in relation to smells. The smell must be (a) bad and (b) continuous. A bad smell is obviously a subjective issue, but suggests, at least, that the smell must be unpleasant or strong, rather than simply not to an individual’s particular taste. Continuous is perhaps therefore more useful in relation to smells, and therefore can also form part of our assessment as to what makes up the utility value of land. It suggests that the occasional minor ‘annoyance’ is within the scope of what landowners should be expected to put up with from each other. 72 73 74

ibid 299. At n 60. ibid 600.

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As Lord Wright explained in Sedleigh-Denfield:75 It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.76

Society expects the occasional breach of the ‘power-boundary’ and as long as it is not serious or continuous/repeated, then it is not remedied by law. This is because such minor occasional interferences do not in any real sense interfere with the balance that exists between the competing rights of holders of interests in land. We can therefore take one aspect of this sort of case and take it forward— repetition/continual interference. Thus ‘seriousness’ has as one of its elements repeated, trivial interferences. Such an assessment is clearly useful in an environmental context. As a result, environmental harm can be interpreted to mean that legislative provisions generally cover actions on land which cause serious or repeated environmental damage, when such terms are seen as a function of the statutory language. (c) Risk Finally nuisance can be considered to ascertain how risk can be assessed as part of the principle of environmental harm. How does the tort of nuisance treat risk? In nuisance actions the key to understanding how risk is treated lies in the case law surrounding the rule in Rylands v Fletcher.77 These cases discuss the extent to which we allow one neighbour to put his other neighbour at risk without attracting liability if that risk does materialise. Environmental regulation operates, often, in a pre-emptive fashion in that the action itself, whether it gives rise to harm or to risk of harm, will often attract liability, even if the risk has not yet materialised. The jurisprudence in Rylands v Fletcher helps to demonstrate however that risk, when understood in a particular way, is in fact harm in and of itself. This is something that can be taken forward into our understanding as to how we should interpret the environmental offences under consideration. It also helps to explain how harm might interact with the precautionary principle. The principles of Rylands v Fletcher have been very recently reviewed in Stannard (t/a Wyvern Tyres) v Gore.78 From that case the following principles were outlined by Ward LJ: (1) The defendant must be the owner or occupier of land; (2) he must bring or keep or collect an exceptionally dangerous or mischievous thing on his land; (3) he must have recognised or ought reasonably to have recognised, judged by the standards appropriate at the relevant place and time, that there is an exceptionally high risk of danger or mischief if that thing should escape, however unlikely an escape may have been thought to 75 76 77 78

At n 57. ibid 903. (1868) LR 3 HL 330 (HL). Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248, [2013] 1 All ER 694.

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be; (4) his use of land must, having regards to all the circumstances of time and place, be extraordinary and unusual; (5) the thing must escape from his property into or onto the property of another; (6) the escape must cause damage of a relevant kind to the rights and enjoyment of the claimant’s land; (7) damages for death or personal injury are not recoverable; (8) it is not necessary to establish the defendant’s negligence but an Act of God or the act of a stranger will provide a defence.79

The relevant issue is the assessment as to what will constitute, in short, an actionable risk. From Rylands v Fletcher we know that, under nuisance, in order for risk to attract liability, the risk needs to be foreseeable. ‘Knowledge, or at least the foreseeability of the risk, is a prerequisite of the recovery of damages under the principle’.80 Anthony v The Coal Authority81 provides similar guidance. In that case, Pitchford J stated that: ‘[i]t would not be a reasonable use of land to create or to continue a hazard which you know or should know carries a foreseeable risk of damage to your neighbour beyond the bounds of tolerance in give and take’.82 He acknowledged that even foreseeable risks can be allowed if they form part of the normal ‘give and take’ of existing in a community of holders of rights in land. He then concluded that: The creation of a state of affairs on land which, at the time, carries an unforeseen and unforeseeable risk of damage to one’s neighbour is not actionable in nuisance. If, however, by the improvement of knowledge, scientific or otherwise, the risk becomes foreseeable, one is under a duty to abate that state of affairs and, if one fails to fulfill the duty to abate it, then, on the occurrence of damage, the nuisance is actionable.83

This approach to risk can integrate improvements in scientific knowledge into its process, as well as outlining when the ‘adoption’ of a risk might be considered actionable, something relevant to contaminated land, for example. The harmfulness of the risk itself, as a part and parcel of the liability, is therefore its foreseeability. In an environmental context, we can draw an analogy with the requirement that a risk which attracts liability must be a risk which could reasonably be appreciated. Within ‘reasonably’ lies a multitude of considerations. In the environmental context, the precautionary principle forms part of that assessment of reasonably foreseeable risk. Risk, unlike actual damage, attracts liability because of the need to prevent damage to a neighbour, or to the environment, and the expression of risk within Rylands v Fletcher underlines this. Risk, in this sense, is a function of knowledge, and the potential for harm, and as such risk assessment does require knowability before it can attract liability under the concept of harm articulated through nuisance. The harm to the land community comes from proceeding with an activity which a reasonable person would consider ‘risky’. Harm therefore relates to an irresponsible action. 79 80 81 82 83

Paraphrased by S Tofaris, ‘Rylands v Fletcher Restricted Further’ (2013) 72 CLJ 11, 12. Cambridge Water v Eastern Counties Leather (n 23) 302 per Lord Goff. Anthony v The Coal Authority [2005] EWHC 1654 (QB), [2006] Env LR 17. ibid [128]. ibid [129].

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Not allowing such irresponsible behaviour forms part of our understanding as to what co-ordination rules are required to manage a system of rights in land. There is some academic support for exploring the concept of risk in nuisance. McEldowney and McEldowney state that the development of the rules on nuisance: [R]equired an assessment of risk (scientific and otherwise) and its use as evidence. In its private form, the tort of nuisance gave rise to liability, within set boundaries, for physical damage to the adjoining land of a neighbour. There had to be unreasonable use of land, which was dependent on variables such as the nature and duration of the nuisance and the intention or purpose of the individual’s action. The balance between public value and private interest lay at the intersection between economics, mathematics, science and evidence in courts.84

They recognise the assistance that nuisance can provide in demonstrating some of the considerations that can, and should, go into balancing these factors, in a way similar to that required when interpreting environmental offences. This also explains how the principle of environmental harm and the precautionary principle would interact.

(vi) The Relationship Between Nuisance and Regulation As was noted above, the relationship between nuisance, ie private law regulation of land use which causes harm, and the public regulation of such harm, has been uneasy. The relationship, in particular, between the private right of a neighbour not to have their enjoyment of their property endangered by the action of another has collided with the planning system and environmental permitting process. This is seen both in Barr v Biffa Waste,85 and in the significant decision in Lawrence v Fen Tigers.86 Thus it might be argued that consideration of the rules concerned with nuisance is counter-productive to achieving certainty and sensitivity to the environmental criminal law context. As was highlighted above however, the aim of this discussion is not to suggest that nuisance is a panacea for solving the certainty problem in environmental law, but that nuisance can provide an example of two central elements of the interpretive framework outlined here. Firstly, it demonstrates how the courts reason in relation to land use rights and the competition between such rights. In particular, it shows how the court’s reasoning in this respect can be stable yet flexible, characteristics required in the environmental criminal law context. It therefore demonstrates that the courts are capable of providing the certainty craved, in a way which is sensitive to the various overlapping values present in environmental law. Secondly, it provides a guide to the specific elements of property rights which can assist in regulating the environment and if the courts are able to draw on these

84 J McEldowney and S McEldowney, ‘Science and Environmental Law: Collaboration Across the Double Helix’ (2011) 13 Environmental Law Review 169, 181. 85 Barr and others v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2013] QB 455. 86 At n 54.

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ideas, they can better develop an approach which is sensitive to property rights as discussed in chapter two. Property rights do not need to have priority over environmental issues, but, if we are to continue the dialogue of mutual consideration that characterises the relationship between property and the environment, it is useful to examine particular elements of each that can feed into this discussion. Consideration of nuisance allows this. However, in these cases the courts do struggle with the overall structure of the framework of control of land use. This feeds into questions of consideration of the overall system of rules looked at in stage three of the interpretation framework outlined here. But it also raises questions about the appropriate forum for decisions about land use. As the court in Lawrence highlighted, a public law planning permission should not be enough to deprive a person of their property rights, but nor should property rights stifle development when those rights have been taken account of in the process of granting a planning permission.87 The solution outlined in Lawrence is to rely not on the injunction but on damages as the appropriate remedy in nuisance.88 In other words, the tension between the two systems of law is resolved by relying on remedial flexibility.89 The problems with this have been discussed elsewhere, but it is important to note, firstly, that the advent of a comprehensive or nearly comprehensive system of land use control has limited the necessary role of nuisance, and secondly, that in so-doing, the role of nuisance has shifted over time.90 This has led some to question the ongoing relevance of the tort with predictions of the death of nuisance. It is argued however that there is no need for such a death if the proper role of nuisance is seen to be one which meshes with, rather than pushes against, the role of regulation. To return to questions of interpretation, the doubts raised about the future role of nuisance merely serve to highlight that an approach to interpretation which can integrate common law and statute is to be preferred to one which sidelines the tort action where that tort still has a useful role to play. It could be argued that considering an approach to interpretation from the perspective of nuisance is putting the cart before the horse: nuisance is dying in the face of regulation, so why should we look to nuisance as a model for interpretation, rather than looking to the approach to that regulation? The answer, as highlighted above, is that nuisance has proved stable, and it has done so because the common law approach to interpretation has been followed. The aim of looking to nuisance is no more and no less than to simply consider how the courts reason in relation to harm and land use when there is no statutory provision to interpret. The outcomes show that the courts are able to account for some of the features of environmental law that make it problematic as a topic of interpretation.

87

ibid [156]. ibid [121], 126], [157], [167], [171] and [239]. Lees, ‘Lawrence v Fen Tigers’ (n 54) 455–57. 90 ibid. See also MJ Dixon, ‘The Sound of Silence’ [2014] Conveyancer and Property Lawyer 79 and D Howarth, ‘Noise and Nuisance’ (2014) 73 CLJ 247. 88 89

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The common law courts have done so by considering in detail the harm addressed. Harm requires an identification of a setback to interests. For risk, this could either exist thanks to such a serious risk that confidence in property rights is eroded simply by the existence of the risk, something which would constitute harm in itself, or, if no such serious risk existed, the harm principle would require the identification of the perceived harm that would arise if the risk materialised. This would allow examination as to whether regulation of this risk was legitimate, and the precautionary principle would militate in favour of regulation by counteracting the fact that there was uncertainty over the likelihood of the risk coming to fruition. This brief review of nuisance, and therefore of some of the elements of the interests that form part of the land community, gives rise to three conclusions. Firstly, causing serious damage to land is harmful because of the impact that this has for the potential value of all land if such damage goes uncontrolled. Secondly, even non-serious damage which is continuous or repetitive can legitimately attract liability because allowing such continual damage too would undermine the content of property rights and thus threaten the land community. Thirdly, we can impose sanctions onto those who risk damaging land in advance of such damage actually taking place. The risk itself, and the irresponsible action that constitutes this risk, where the risk is foreseeable, will undermine confidence in the rights that make up the foundation of the land community. That these principles form part of our existing regulation of private interests in land provides a foundation to begin to populate our understanding of harmfulness in relation to land and the environment. The process by which the courts have developed this understanding of harm is also of note. They have developed certain principles over time which are flexibly, but continually, applied to attempt to ensure coherence. An additional factor that must be taken into account when drawing the comparison with the method of legal reasoning in nuisance, is the different starting point for reasoning in a public and a private law context. Furthermore, the purpose of nuisance is, for the most part, dealing with tangible physical effects (both intrusions and impacts such as noise). Environmental law goes beyond this, and in particular looks to prevent such occurring before it occurs, rather than remedying the occurrence, as its primary focus. Nuisance, in essence, is ‘about’ protecting property, not about protecting the environment per se. Of course, there is a degree of overlap here. Protecting property, as has been highlighted if we consider the land community as a basis for regulation, can and will involve protecting the environment. It can also involve causing damage to the environment. There is no doubt that regulation goes beyond nuisance in this respect. Not only is its goal to protect the environment, but its scope is not restricted by the assumption of liberty in property rights. What impact does this have upon using nuisance as an example of a legal method in practice however? It is suggested that it has relatively little impact in fact. What the examination of nuisance has shown is how the common law method can be used in a property and environmental context to achieve a good mixture of certainty and intervention.

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The recent decision of the Supreme Court in Lawrence v Fen Tigers is instructive in this respect. It was noted above that in that case the regulation of noise pollution, roughly speaking, was a matter for nuisance. It was also noted that a public law intervention in the shape of planning permission cannot be enough to permit such a nuisance. Thus the relationship between private liberty and public control is examined by the Court. Most importantly, the Court also considers the proper role of nuisance in a modern world. In making all of these considerations, the Court demonstrates what is good about the common law method of reasoning, and the system of stare decisis. The Court does alter precedent, in particular in relation to remedies, but it does so in a way which attempts to be predictable, and at no point is the purpose of nuisance in general seen as a justification for overriding long-established precedent. The changes that are made to the existing rules, and the clarifications where there had been some uncertainty, are made in an open and considered fashion, examining in detail previous case law, considering the proper role of the judiciary, and proper role of private law in relation to regulation. Such an articulation is useful and necessary and demonstrates what the judiciary are well-equipped to handle.

(vii) Accounting for Uncertainty, Lack of Scientific Knowledge and Administrative Discretion The development of such principles in the environmental context will allow the law to stand up to the specific challenges relating to interpretation of environmental offences. It was explained above that harm could only be given specific content if it was sited in the specific legal culture within which it was being defined. The legal culture that we are dealing with here has a number of specific features, the most important of which is the regulation of land use as a practical issue. This aspect of the legal culture has already been integrated centrally into our definition of the principle of environmental harm through the land community. How this works in practice was demonstrated by consideration of the rules on nuisance. This understanding of harm can function in relation to other aspects of the specific legal context however. There are two key issues to be considered here. Firstly, how can this understanding of environmental harm operate in the face of uncertainty and a lack of scientific knowledge? Secondly, how can it account for the levels of administrative discretion encountered in this area? Once these issues are worked out we will have built a relatively precise concept of harm, drawing on the use of that principle elsewhere in land use regulation, but specifically tailored to be useful in the context considered here. The first issue that has to be faced is how ‘harm’ as an element of interpretation can cope where there is a lack of certainty. The potential relationship with the precautionary principle has already been considered in the discussion about nuisance.91 How can we act on the basis of preventing harm, and interpret a 91

See pp 159–61 in this book.

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regulatory provision accordingly, where we cannot prove that such a harm is even scientifically possible under the conditions, let alone likely? There are two solutions to the problem of scientific uncertainty: one more successful than the other. The first solution is to say that in the context of environmental regulation, because the scientific uncertainty is so pervasive, uncertainty means that in this particular legal context, notions of harm have to be interpreted flexibly. A court may abandon its search for a defined harm. Thus regulation would not be interpreted so narrowly to mean that regulatory intervention was not permitted simply because the risk of harm could not be proven. This solution essentially imbues the definition of harm with precautionary content. The difficulty with this solution is that it seems to merge the precautionary principle and notions of harm, thus leaving the framework for interpretation unable to fulfil its function as a break on purposive interpretation. It is possible to define the harm principle in this way therefore, but it is less clear whether it would be useful to do so. The second solution, which works far better, is to consider again the concept of the land community and to recognise that the risk of harm is in itself harm under the definition outlined above. It undermines the integrity of the legal rights and interests which form the structure of that land community. If a risk of harm is in itself harmful therefore, in this context at least, the harm being searched for is a different harm and the impact of scientific uncertainty is thereby minimised. Fisher in her writings emphasises the need to put the inevitable, unavoidable fact of scientific uncertainty in this regulatory context as central to approaches to analysing the law in this area.92 By defining the harm principle in this way, this approach can do that without robbing the second stage of the framework for interpretation of its usefulness. The final issue is to consider how harm can account for and relate to administrative discretion. The definition of harm or mischief employed here, in focusing on rights-holders in land, ignores to a large extent the nature and legitimacy of the person making regulatory decisions. The courts are instructed to interpret on the basis of this framework regardless of the nature of the original decision-maker. It therefore contrasts with approaches relying on legitimising the discretion itself. The two approaches are tackling different issues, but they still need to be able to work harmoniously together. An enforcing authority which acts on the basis of a rule as interpreted by the courts, whatever its democratic failures—lack of representation, or public participation etc—is acting in a more legitimate fashion than if it does not take account of the valuable role that the judiciary has to play as overseer of administrative discretion. We have to acknowledge however that those elements that might help to make up for a lack of administrative legitimacy—most often public participation is used to counteract a lack of basis in representative democracy for a decision-maker—could well come into conflict with interpretation on the 92 E Fisher et al, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213, 229.

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basis of harm. For example, although much self-interested comment from those subject to the regime may well be compatible with interpretation based on this framework thanks to its reliance on the land community, much would not. In some instances the voices of the public or indeed the voices of those in legislative authority may advocate an approach which does not allow for interpretation of the relevant terms in a legitimate, principled and coherent fashion. How can the harm principle operate in the face of such pressure from sources of legitimate political authority? As above there are two ways to reconcile these ideas. Firstly, clear and articulated understandings of harm only weigh in a certain direction and do not necessarily dictate a result. If the forces of representative democracy or the popular voice is so overwhelming in favour of another result, it may be acceptable for the courts to proceed in a different direction than that advocated by the principle of environmental harm. This is an acceptable solution to the problem, but it does not really get to the heart of the issue as to why the nature of the administrative body concerned is so important in environmental law, and why harm can perform such a critical role. Rather than pitting the two systems against each other in the case of conflicting conclusions, it would be better to treat harm as an exclusionary force. Seeing harm as a principle of interpretation, and therefore of regulation, means that reliance on the principle can exclude certain reasons for acting in a particular way. Thus, if a member of the public who had been consulted advocated regulation which bore no relation to the harm being caused—a liability rule related to the resources of the offender, for example—the development of a clear jurisprudence based on coherent understandings of harm could encourage administrative authorities to exclude their opinion from being taken into account. Public participation as a normative guide to decision-making would therefore be hemmed in and restricted by the principle of environmental harm as part of the overall framework of legitimate environmental decision-making. In essence, what the mischief element of this framework allows us to achieve is the prioritisation of certainty in all its forms. Reliance on the language used in relevant provision as the starting point, and a strong conception of precedent, produces transparency. A review of the existing law is useful to determine what a future application of the rules will entail. By considering mischief, again, transparency is prioritised since the focus is still very much on the wording of the provision, but by including understandings of harm from elsewhere in the legal system, we can begin to build up the formal coherence of the legal system. To use the examples of this process considered here, by looking at the types of harm considered in nuisance, we can begin to see how the legal system as a whole builds up a concept of non-permitted land use. By using the concerns of nuisance, as well as other elements of the legal system such as criminal law principles, as part of the picture as to what a particular word means, the overall harmonious operation of the provisions can be maximised. The mischief rule is thus a means to give content to words where those words are ambiguous without resorting simply to

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reliance on purpose, but it is also a means to achieve this whilst promoting overall coherence, thereby minimising conflict within the legal system, contributing to certainty overall. The principle of environmental harm can therefore stand up to the pressures of the environmental context. This principle becomes relevant at the second stage of the process of interpretation to be adopted by the court. At the first stage, the court engages in linguistic analysis of the text. It will then resolve any remaining ambiguity by utilising the notion of environmental harm as tailored to the land use context. This is the judicial principle which allows identification of the mischief tackled by the legislation.

III. Seeing the Rules as Part of a Framework If ambiguity still remains, then the court will move on to the next stage of the interpretation framework, and consider the regulatory scheme of which the particular provision before it forms only a part. It is particularly important to recognise that the offences considered here are part of a framework of regulation, albeit that it is a framework with gaps, overlaps, and one which was not created intentionally. The link between the three regimes is essentially the Environmental Liability Directive (ELD) and the continuity it provides between contaminated land regulation and nature conservation in particular, but the waste regime, through environmental permitting also overlaps. Many contaminated land issues are also waste issues too. Crucially, all of these regimes are controlling land use in one way or another, and they all do so from the perspective of protection of the environment. When considered in these broad terms therefore we would expect that they all pull in the same direction, as a minimum. Ideally we would also expect a degree of continuity and harmony in terms of interpretive approaches and outcomes. Such homogeneity is encouraged by the preamble of the ELD which states that terms where repeated in that Directive, ought to be interpreted consistently with other European regulations.93 Taken writ large we can see that this ideal of continuity applies also to those measures which do not have a European background. Thus, when a court is called upon to interpret a measure which forms part of one of these offences, the judge ought to consider the extent to which the offence is mirrored, supplemented, or overlaps with other offences. We ought to ensure consistency across regimes, not just in outcome, but also in approach to definitions. Thus the third stage that the court must engage in after having assessed the harmfulness tackled by the legislative provisions as worded, is to consider the legislative context within which a particular provision sits.

93

ELD, preamble [8] and [9].

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IV. Explanatory and Pre-Legislative Materials The fourth stage will again only become relevant if there is still ambiguity. At this stage the court can have recourse to explanatory notes and to the pre-legislative materials if the common law conditions for recourse to such materials are met. In Pepper v Hart94 the court concluded that in cases of ambiguity in the language of a statute it would be permissible to make reference to Hansard to discover the intentions of Parliament. The statements of those promoting a bill or of ministers would be consulted as part of the context of the statute. Where Hansard revealed that the particular question of interpretation had been considered by Parliament, and had not been challenged, then the matter could be resolved by reference to that interpretation where the statement in Parliament was sufficiently clear.95 Thus according to Lord Browne-Wilkinson, ‘[t]he courts cannot attach a meaning to words which they cannot bear, but if the words are capable of bearing more than one meaning why should not Parliament’s true intention be enforced rather than thwarted?’96 Later interpretations of the principle, at the House of Lords level at least, do however seem to have pulled back from Pepper somewhat, at least as far as ensuring that ministerial statements are treated as simply part of the contextual context and not determinative in themselves. As Kavanagh argues (citing Lord Wilberforce in Wilson): By saying that it is the function of the courts to ascertain the will or intention of Parliament, we often neglect ‘the important element of judicial construction; an element not confined to a mechanical analysis of today’s words, but, if this task is to be properly done, related to such matters as intelligibility to the citizen, constitutional propriety, considerations of history, comity of nations, reasonable and non-retroactive effect and, no doubt, in some contexts, to social needs.’ This is not austere literalism. It is statutory interpretation carried out by an independent judiciary within the boundaries of constitutional principle.97

Considered in this context, reliance on Hansard and non-statute based expressions of the purpose and aim of a statute as far as its interpretation is concerned, as well as the traditional approach which can take account of the ‘mischief ’ aiming to be tackled by the statute, it is not a surprise that a purposive approach is in evidence in the UK courts when considering national legislation. The critical issue however as highlighted in this book is to impose consistency and structure onto reliance on purpose. An additional complication here is the ability of the court to rely on the explanatory notes, a rule which would expand the ability of the executive to control the 94

Pepper v Hart [1993] AC 593 (HL). For a detailed discussion of the nature of these requirements, see Vogenauer, ‘A Retreat from Pepper v Hart?’ (n 21). 96 Pepper v Hart (n 94). 97 A Kavanagh, ‘Pepper v Hart and Matters of Constitutional Principle’ (2005) 121 LQR 98, 121. 95

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interpretation of the legislation. Reliance on these sources encourages and indeed promotes an unstructured purposive approach. What it does not do, at least as a matter of law however, is force a court to consider and give effect to a particular purpose if they are able to interpret the statute by other means. In addition, the UK courts unlike (at least it seems) EU courts and domestic courts when considering European legislation, are entitled to, and indeed mandated to, according to some, consider issues such as the rule of law and constitutionalism98 when considering interpretation. If constitutionalism is indeed a common law fetter on the scope of interpretation, arguably principles of law and the requirement of coherence are integrated into this wider concept as part and parcel of regulation within a democratic context. Thus at this fourth stage reliance on purpose as defined is permissible without undermining certainty. By way of example, although there are no explanatory materials for the waste or contaminated land provisions, and even though the conservation provisions are European in origin, the enacting regulations are indeed accompanied by an explanatory memorandum. The memorandum that explains the provisions in the Conservation of Habitats and Species Regulations 2010 (CHSR 2010) (which are amended by the 2012 provisions) does not provide much information relevant to interpretation except to confirm that (a) the 2010 regulations are not intended to bring about substantive change from the 1994 Regulations as amended;99 and (b) to highlight that the purpose of the relevant Directives is to ensure conservation of habitats and species.100 In terms of the UK approach to interpretation it is unlikely that this memo could provide any help beyond that which would be achieved by reference to antecedent legislation as permitted under the traditional approach to interpretation. The explanatory memorandum that was introduced with the 2012 regulations101 is however more comprehensive and therefore more 98 To understand the content of constitutionalism as a principle of legal reasoning we can look to, for example, the reasoning of the courts in relation to the Human Rights Act 1998. The comments of Lord Hoffmann in relation to Art 10 European Convention on Human Rights are relevant in this context: Independence makes the courts more suited to deciding some kinds of questions and being elected makes the legislature or executive more suited to deciding others … The principle that the independence of the courts is necessary for a proper decision of disputed legal rights or claims of violation of human rights is a legal principle … On the other hand, the principle that majority approval is necessary for a proper decision on policy or allocation of resources is also a legal principle. (Per Lord Hoffman, R (BBC) v ProLife Alliance [2003] 2 All ER 977 (HL), [76].) In other words, the legal principle of constitutionalism recognises that there are limitations on the powers of the various bodies that make up the state. Firstly it acknowledges that some organs of the state are better equipped to tackle certain issues that others. Secondly, however, it seems also to recognise that there is an inherent limitation on what the state is justified in doing and as such the judiciary is likely to be conservative in terms of its interpretations of attempts to extend state power and limit the liberty of the subjects of that power. This explains in part why the criminal law is interpreted narrowly. For more on the notion that the courts recognise that there are limitations on the power of the legislature in the context of environmental decision-making, see RG Lee, ‘Resources, Rights, and Environmental Regulation’ (2005) 32 Journal of Law and Society 111. 99 CHSR 2010, explanatory memorandum, at [1]. 100 ibid [7.1]. 101 ibid.

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likely to help the court to interpret the regulations where needed. The memo outlines the nature of the new duties imposed by the regulations,102 and the purpose behind these. This may bolster a court in its interpretation of such duties and would provide a demonstrable source for purpose, regard to which could then be had in future decisions.

V. Ambiguity—Aims as a Last Resort Finally, if the court is still unable to ascertain a certain meaning from the wording of the statute and from certain prescribed sources of ‘aim’, only then can it look in general at environmental protection as a justification for a particular interpretation. The current approach misses out the above stages and sees the question of interpretation as a function of language and purpose broadly understood. The framework outlined here tries to contextualise purpose through the notion of environmental harm. The development of an autonomous judicial conception of harm which will be developed over time will give rise to increased certainty since it will be based on predictable and identifiable principles. Here, the land community was used as the basis for the definition of harm given the land use context. This is very different from simply looking to achieve as much environmental protection as possible.

VI. Conclusions As discussed in chapter three, the aim of this new approach to interpretation is to ensure certainty in the form of transparency and accessibility. The framework for interpretation developed in this book has sought to show that the best way to achieve this within the environmental context is through ensuring, firstly, that interpretation is primarily linguistic, and secondly, by relying on a common law method with a robust conception of precedent. At first glance these two approaches may seem at odds. The common law system, by relying on the judiciary, does not return each time to the language of the statute. However, it is not a return directly to the statutory provisions that this book is advocating. Rather, it advocates an approach which relies directly on the judiciary to interpret statutory provisions on the basis of earlier case law, but that this case law should be developed, as a starting point, from the language of the statute. In cases where precedent does not determine the definition of a key term used within a statutory provision, rather than turning to the purpose of the provision to determine 102

ibid [7.4].

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whether the situation before it should fall under the provisions, the court should turn to the language of the statute and attempt to give it its natural meaning. In terms of legal method, this means linguistic interpretation: inductive reasoning. Together, these approaches, if adopted, will produce an approach to environmental legislation which produces certainty. However, it is clear that there will still be cases of uncertainty, be that through uncertainty as to scientific information, or through uncertainty arising simply through the indeterminacy of language. In such circumstances, the court should be aware of context, the traditional solution to the indeterminacy problem. In assessing this context however, it is important where certainty is being pursued, that the method of analysing context too happens along predictable lines. The lines for such an analysis here begins with an assessment of the harm tackled as drafted—the mischief aimed at by the legislation. In order to discover what this is, the court should be sensitive to the property dimensions which arise in relation to land use control, as well as to the need for environmental protection. The principle of environmental harm thereby provides direction to the search for the mischief tackled by the regime in a predictable way. Only if this fails will the court look outside its own jurisprudence and the text of the statute in order to find a solution to its interpretation problem. This will allow for transparency—by increasing predictability—but it will also allow for accessibility, since it will be clear to those subject to the relevant rules where they can find answers to interpretive questions that may arise. It will tighten the link between the rule as applied, and the rule as drafted, and it will produce a single, harmonious line of case law, rather than a multitude of definitions fashioned on a case-by-case basis.

8 Practical Implementation of the Solution In order to consider the practical feasibility of implementing the new interpretive approach to legislation, it is necessary to explore how such an approach would interact with the existing legal framework. In particular, in the following section the relationship of this solution with interpretation based on the environmental principles will be discussed. It will also be shown that the existing legal barriers to adopting such an approach—the jurisprudence of the European Court of Justice (ECJ) and binding statutory guidance in particular—can be overcome. Finally, examples of the framework in operation in relation to some of the key trigger terms discussed in this book will be discussed.

I. Environmental Principles The relationship between environmental principles (the polluter pays principle, the precautionary principle, the principle of rectification at source, the principle of preventive action, etc) and the linguistic approach to interpretation outlined here will influence the practical possibility of adopting the new interpretive approach. There has been much reliance on the environmental principles as providing a possible solution to uncertainty as a contributor to the failures of environmental law to date. Fisher has extensively considered environmental principles. Her starting point is to consider how the precautionary principle operates in law, and she follows Dworkin in this: ‘[l]ike all legal principles, it “states a reason that argues in one direction but does not necessitate a particular decision”’ (citing Dworkin).1 ‘In other words’, she argues, ‘as a principle, it regulates the reasons for a decision and the process by which a decision is made. Like all principles, the principle can only be substantively defined in the context that it is operating in’.2 The argument here relating to the interpretation supports this approach to principles. Principles

1 E Fisher, Risk: Regulation and Administrative Constitutionalism (Oxford, Hart Publishing, 2010) 41 citing R Dworkin, Taking Rights Seriously (London, Duckworth, 1977) 26. 2 ibid.

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can be substantively defined within a particular context, but they argue for a particular outcome without demanding it. Furthermore, Fisher argues that the definition given to a principle in any particular context will and should be bound up with questions of legitimate exercise of state authority.3 Most importantly her approach is one which draws a distinction between policy and principle: ‘the precautionary principle should not be understood as a policy, as policies are concerned with a particular political end rather than with the process of legal reasoning’.4 She argues that principles are an integral part of reasoning within a legal system and must therefore be part of the process that goes into interpreting a particular rule. This assessment of the role and nature of principles is correct, but reliance on the environmental principles cannot provide a solution to the uncertainty problem. The most detailed exposition of the argument that environmental principles should be used as aides to interpretation is to be found in the work of de Sadeleer. The argument presented in this book shares much in common with that of de Sadeleer, not least recognition of the incoherence and uncertainty present in the existing law. He argues that the environmental principles, ‘would allow environmental law to regain coherence’.5 Legal principles, in his view, ‘represent precisely those lines that would make it possible to put some order into the current legal chaos’.6 Crucially however, in seeking to transform the environmental principles from policy to legal rules, or principles of legal application at least, de Sadeleer’s approach cannot solve the problem outlined here, or indeed the problem that he outlines. Additionally, his focus is on utilising environmental principles to ensure environmental protection. Once the motivation is no longer certainty and coherence in themselves, but certainty and coherence as instrumental aids to the creation of a legal system which effectively protects the environment, there will also be a tension in the ability of these principles to deliver. The only way to ensure certainty and coherence is to seek them in and of themselves as a primary goal. Detailed analysis of de Sadeleer’s approach to environmental principles reveals their inability to solve the certainty problem. Firstly, he sees the primary role of the principles as guides for the legislature. He states that, ‘principles are in the first instance meant to guide the legislator, who must breathe life into them by adopting specific implementing laws’.7 When considering the meaning and role of the principles therefore, if given a heterogeneous meaning, the principles cannot account for the different constitutional context 3

ibid. E Fisher, ‘Precaution, Precaution Everywhere: Developing a “Common Understanding” of the Precautionary Principle in the European Community’ (2002) 9 Maastricht Journal of European and Comparative Law 7, 16. 5 N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford, Oxford University Press, 2002) 267. 6 ibid. 7 ibid 269. 4

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within which a decision is being made. The reason for this is that the environmental principles, whether taking the shape of principle or policy, are expressions of policy and justifications for regulation. They are not ‘independent’ guides to judicial decision-making where the values of law, not the values of environmental protection, provide the backdrop to such decisions. Secondly, the basis of his claim that the principles can increase coherence and at very worst would not have a detrimental effect on certainty, is that these principles can ‘serve to re-establish the coherence of the legal system by specifying the purposes of environmental law’.8 As argued above however, certainty cannot be achieved by stating aims more clearly. It is not poor articulation of the aim that is causing uncertainty. It is reliance on the aim where the aim is considered only to encompass the goals of environmental protection. ‘Help[ing] to clarify the purpose’9 of environmental regulation will not help to increase certainty in the interpretation of those rules. The reality of this criticism is made clear when the example considered by de Sadeleer to demonstrate the utility of environmental principles is examined. He argues that reliance on the environmental principles can help to clarify the definition of waste.10 When the jurisprudence of the ECJ on the definition of waste is considered in detail, it is very clear that it is already considering the environmental principles, but that reliance on purposes in this way has had a detrimental, not a positive effect, on the certainty of the ensuing rules.11 The third reason why his approach cannot solve the uncertainty problem is his explanation as to how the environmental principles would constrain and control judicial decision-making. He summarises the critics of reliance on the environmental principles as stating that, ‘legal certainty … requires that judges be subservient to a text that is clear, precise, and complete and not to flexible norms such as the principles we have been considering’.12 He then goes on to refute this argument. He has however mischaracterised the nature of the criticism of reliance on environmental principles as being detrimental to certainty. The true position is not that certainty requires clear and precise rules that the judges must rely on, it is that certainty requires that judicial decisions are predictable even where the rules relied on are not clear and precise. It requires that they are predictable because the process followed will be the same across different contexts. Reliance on principles is not necessarily detrimental to certainty. Reliance on the environmental principles would be so detrimental because they are simply shortcuts to justifications for environmental policy. They are not, in short, concerned with ensuring certainty, and therefore do not prioritise certainty. Where certainty and the environmental principles come into conflict, one must prevail. Principles which could truly assist in ensuring certainty in judicial decision-making would

8 9 10 11 12

ibid 265. ibid 265. ibid 265. See ch 6 in this book. de Sadeleer, Environmental Principles (n 5) 273.

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be principles that incorporate the ideal of certainty. In relation to certainty, de Sadeleer concludes that, ‘the flexible nature of principles does not put legal certainty into question: indeed, certainty has been ill-served by a profusion of overly specific laws, revised at regular intervals’.13 This is not disputed—but whether or not the principles affect certainty depends on what the content of those principles is. When this is recognised, it becomes clear that the environmental principles cannot bring the certainty craved. The fourth criticism to be made of de Sadeleer’s approach lies in the method by which the principles are given clear content. He argues that: The principles they will have to apply will be those set out in legal texts such as framework conventions or framework laws (directing principles) rather than principles derived from case-law (general principles of law). The role of the court will thus shift from judge-made principle to the implementation of principles recognized by the legislator.

The reliance on the legislature to create and define the relevant principles prevents the judiciary from integrating legal values into the definitions of those principles. It is has been argued that the key to ensuring certainty in this context is the development of a judicially autonomous concept of environmental harm. This judicial development would better recognise the role of the courts as interpreters of rules on the basis of principle. It would allow them to mould the principles to ensure that certainty was achieved. If the judiciary was hampered in this task by legislative instruction in the form of the environmental principles, once again, principle would be subsumed into policy. Finally, de Sadeleer’s work exemplifies understandings of principle as short-cuts to policy. He states that reliance on the principles: ‘may serve to tilt the scale more strongly in the direction of environmental protection’.14 De Sadeleer’s approach to principles is therefore not one which can solve the difficulties currently experienced in interpreting the rules outlined here. Rather, it is another way of ensuring and assessing whether or not a regulatory system is achieving its aims. As Fisher highlights, principles and policy are not synonymous.15 Experience shows that de facto treating them as synonymous does not produce certain outcomes. Winter’s approach to principles does however represent a genuine attempt to move from principles as policy, to principles as a matter of legal reasoning.16 He argues that ‘[p]rinciples stand in the background of rules and influence their interpretation and application. They enhance the normative power of rules’.17 The shape of the rule, and its interpretation should be determined by reference to these principles according to his approach. For example, the polluter paying 13

ibid 275. ibid 301. 15 Fisher, ‘Precaution, Precaution Everywhere’ (n 4) 16. 16 G Winter, ‘The Legal Nature of Environmental Principles in International, EC and German law’ in R Macrory, Principles of European Environmental Law (Groningen, Europa Law Publishing, 2004). 17 ibid 16. 14

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for his own waste is a more effective solution to the environmental problem of waste because it acts as a deterrent to avoid producing waste. The polluter pays principle as a genuine legal principle however would require consideration as to whether the polluter pays principle is a legitimate basis on which to regulate in any particular context. The principle would need to be balanced against the other considerations relevant to the decision. This would allow for judicial integration of certainty into the application of such principles. The underlying content of the principles however, under Winter’s approach, derived as they are from legislatures rather than courts, would always be an instruction for the courts to have allegiance to policy goals. It is this demand for allegiance that has so hampered the courts in their ability to develop environmental regulation in a coherent and predictable fashion. For this reason too, any reliance on the environmental principles is doomed to fail. The final author to consider environmental principles as aids to interpretation is Doherty. He focuses on the role of environmental principles in helping a court to decide hard cases.18 The aim of his piece is very clear: The aim is not to provide an exhaustive model of what interpretive method the ECJ ought to adopt in hard cases, though some preferences are inherent in the analysis. It is not an attempt to develop a single definition of the interpretive function of environmental principles either, but rather than attempt to sharpen our awareness of this interpretive function.19

Critically however he sees hard cases as arising when the ‘trade objectives and the environmental objectives of the EC’ clash.20 His focus is therefore very much on hard cases within the context of a purposive approach. This arises thanks to his focus on interpretation at ECJ level, where the mandate to interpret in accordance with the treaty articles does bring the environmental principles directly into play (although it should also bring questions of certainty into play). He argues that interpretation on the basis of such principles would give rise to ‘an interpretation that both fits the existing legal landscape and develops law in a coherent way’.21 It is precisely this direction that this book suggests the law ought to move in, but, critically, it is argued here that reliance on the environmental principles, based as they are on environmental aims, will not achieve this. The reason that the principles cannot ensure certainty is that certainty can only be achieved by ensuring a consistent approach to interpretation with a clear process. Reliance on the environmental principles, as has been seen, results in the courts using these principles as justifications for outcomes, rather than engaging in the true meaning of the principles. That this is unavoidable where

18 MG Doherty, ‘Hard Cases and Environmental Principles: An Aid to Interpretation?’ (2003) 3 Yearbook of European Environmental Law 57. 19 ibid 58. 20 ibid 60. 21 ibid 70.

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reliance is heavily based on the environmental principles is seen in Doherty’s conclusion: Interpretive use of the principles in a coherent, consistent manner would help address any immanent critique of the EC’s environmental policy. There is always likely to be some gap between the environmental rhetoric of the Community, and its achievements in practice. Interpretive application of the principles, however, takes part of that rhetoric and puts it to practical use, with the aim that contested terms are given an interpretation that coheres with the general objectives.

Ultimately, when the process of interpretation that he examines is outlined, it is nothing more than a purposive approach with the environmental principles providing short-cut justifications for pursuing environmental aims in interpretation. The UK Environmental Law Association (UKELA) report has also called for consideration as to the potential role for environmental principles, as discussed above,22 but it was concluded that its focus on principles, albeit ambiguously, is a shortcut to effectiveness. In relation to the environmental principles therefore what we can conclude is this. Firstly, there is much consideration as to how the principles can assist in interpreting environmental law, and the UKELA has called for more investigations into this process. Secondly, such arguments have for the most part tended to subsume principles into questions of policy—this ought to be avoided. Thirdly, there are those (Winter especially) who do see the powerful legitimising role that environmental principles may have. In order to fulfil this role however, the principles must be properly contextualised and be seen not as a sidekick to effectiveness, but as part of the framework of interpretation in and of themselves. This book does seek to ascribe such a role to principles in that it advocates a principled approach to interpretation which relies on the traditional common law framework. In doing so the approach would be able to work hand in hand with the other environmental principles but has a different focus from the prevailing discussion of such principles. It would provide a certainty-focused overall framework to direct the role that environmental principles can play in populating our understanding of the principle of environmental harm. This would allow those principles to become useful as guides to environmental protection in law, rather than as guides to environmental policy.

II. Legal Barriers to Taking Such an Approach and Overcoming Them What remains to be seen is whether our existing rules on interpretation allow the adoption of such a solution. In particular, two issues need to be overcome. 22

See pp 9–10 and 54–56 in this book.

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The first, and by far the most significant, is the barrier represented by the ECJ’s stated approach. Regulations that have EU measures at their origin must, as a matter of ECJ precedent, be interpreted purposively. This means that the aim of the regime, ie environmental protection, must be given centre stage in the process of interpretation, the very thing that this book suggests is causing such difficulty. This approach to interpretation is outlined in Van Gend en Loos23 and many other cases.24 It springs from the fact that the union is established to achieve certain aims and thus it derives its overall legitimacy from achieving those aims.25 This poses a problem for any fetter on broad, effectiveness-based interpretation. The waste regime, and the special protection area (SPA)/special area of conservation (SAC) system, are both European in origin. The national nature conservation provisions and the contaminated land regime are not, but the Environmental Liability Directive (ELD) and its influence means that the ECJ has a role to play here too. Additionally, there ought to be a desire to ensure that the same overall approach is taken whether or not the measure is European, and so homogeneity is to be preferred if possible. The environmental law jurisprudence of the ECJ must therefore be examined, and overcome. The second barrier is the statutory guidance that demands that the courts take a purposive approach. The contaminated land guidance is binding, and as discussed above, part of the guidance is a stipulation that the measures be interpreted in accordance with their aims. The possibility of taking a principled approach against the background of such guidance therefore also requires examination.

A. Jurisprudence of the ECJ The highly purposive (with purpose defined as environmental protection) approach of the ECJ in relation to these three regimes was outlined above.26 National courts are bound by decisions of the ECJ thanks to the doctrine of supremacy. Furthermore, they are bound to refer questions of interpretation to the ECJ unless the matter has already been addressed by the ECJ or it can be considered acte claire. There is therefore a degree to which not only are the English courts influenced into taking a purposive approach of this nature by the approach of the ECJ, they are also enjoined by the constitutional set-up of the EU to request the ECJ for further guidance in taking such an approach. Not only will the ECJ ensure purposive interpretation, it has also assigned to itself the task of 23 Case C-26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 12 (Van Gend en Loos). 24 For example, Case 6/72 Europemballage Corp & Continental Can Co v Commission [1973] ECR 215, Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 1-3781, Case C-85/95 Bosphorus v Minister for Transport [1996] ECR I-3953, 1-3982, and Case C-83/94 Peter Leifer and Others [1995] ECR 1-3231. 25 N Fennelly, ‘Legal Interpretation of the European Court of Justice’ (1996) 20 Fordham International Law Journal 656, 668. 26 See ch 6 in this book.

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(a) defining what needs defining; and (b) defining purpose. Room for manoeuvre of the part of the national courts is therefore limited, notwithstanding a certain demonstrable reluctance to make maximum use of the preliminary reference procedure for whatever reason. The problem for the adoption of the principled approach to interpretation outlined therefore is that it runs up against certain ECJ decisions. Indeed, encouraging a move away from the current approach of the ECJ to questions of interpretation in environmental law is the most important barrier to any change in the general approach by domestic courts. As far as possible therefore, any change must take place within a framework of understanding that the ECJ is able to embrace as being based on the legal culture of the EU. The approach proposed here is not such an approach—it is heavily influenced by the non-purposive approach of the common law. However, it is possible to frame this approach in such a way as to make it acceptable, or potentially acceptable at least, within the broader jurisprudence of the ECJ. There is no doubt that it would be incompatible with the current jurisprudence on the specific environmental regimes being considered, but when the approach of the ECJ in general is considered, taking a certainty-focused approach is far less controversial. The way to achieve this is to recognise that the purpose of regulation is not simply to achieve its aims, but to achieve them in a way which is compatible with the ideal of certainty. Such a solution is not without precedence in the jurisprudence of the ECJ. There has been a divergence in the approach of the ECJ. In general, a teleological approach is certainly taken, but its shape is very different to the process which is taken in environmental matters. It is, as Conway has described it, meta-teleological, with purpose defined very broadly. For example, if we consider cases such as CILFIT or Van Gend en Loos, the purpose outlined is simply, in essence, the success of the EC (now EU) legal order as a supra-national legal system. The aim, broadly speaking, is to ensure supremacy. In order to demonstrate how it might be possible to move away from this approach (and to derive some insight into why national courts have adopted it in relation to non-EU measures as well), two questions must be answered. Firstly, we can address the question as to why the ECJ is taking a meta-teleological approach, and what shape this approach takes in general terms. Secondly, it must then be questioned why, in an environmental context, the meta-teleological approach that characterises much else in the ECJ’s reasoning is sidelined in favour of a very narrow approach to purpose. It is suggested that the uncertainty of the environmental context has fed into a purposive approach which relies more on the notion of effet utile in environmental regulation than it does on legislative purpose in general. To demonstrate the feasibility of the ECJ adopting a more certainty-focused approach to interpretation in this area however it is necessary to take a detour into the process and approaches used by the ECJ, and its methods of interpretation. In order to understand how we might move away from the teleological approach to interpretation, we need to understand why it is being used in the first place. We can perhaps derive two central reasons. The first is linguistic: the methods of

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drafting and hierarchy of norms as expressed in 24 different languages within the European system itself produces an incentive to take a purposive approach. The second is to do with the constitutional make-up of the Union. The democratic deficit, the treaty-based nature of the legal system, and the principles of European integration, all promote a meta-teleological approach. ‘The importance which the Court gives to systemic and teleological interpretation is related both to the systemic features of the Community legal order and the dynamic, teleological character of the Community project’.27 Firstly, in relation to language, ‘[a]s Beck illustrates, from a descriptive point of view, the Court’s oft-heralded teleological approach is a consequence of the indeterminate nature of the legal materials it is asked to interpret’.28 In what way are the texts ambiguous? Well, primarily, they are textually ambiguous. The reason is that, as the Article 55 Treaty of the European Union (TEU) dictates, all European legislation is equally authoritative in the 24 languages of the Union. As such, there is no one authoritative textual source. The broader the term used in drafting such legislation, the easier it is to produce approximately identical translations across the different languages. The result is a text which is designed to produce the legal outcomes desired, not a text which in many ways is an authoritative statement of the legal standard to be applied. The result is textual ambiguity. This has knock-on effects. ‘The vague, functional and open-ended nature of the EU Treaties, and secondary legislation, leave open numerous possible routes in applying Treaty articles to new factual situations’.29 Textual ambiguity therefore produces a situation where a linguistic approach is not as instinctive as it appears to be in single-language legal systems. As Dawson argues however: There remains … a loose hierarchy of techniques—a ‘cumulative approach’. At the top of the accumulator is literal argumentation and the plain meaning of words. For professional and political reasons, the CJ—like other constitutional courts—is reluctant to depart from the clear meaning of legal texts without reason. In spite of this operating presumption in favour of literal interpretation … the Court has also shown a clear willingness to discard the literal wording where it clashes with other interpretive criteria, such as the purpose, general scheme and context into which the norm is to be applied.30

Thus although the ECJ does not explicitly reject a linguistic approach, the textual ambiguity present pushes it into a different direction where it can rely on reasoning

27 J Bengoetxea, The Legal Reasoning of the European Court of Justice (Oxford, Oxford University Press, 1993) 250. 28 M Dawson, ‘How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice’ (2014) 20 European Law Journal 423, 424. 29 ibid 425. 30 ibid 426.

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based on other features of the EU legal system. This was made clear in the comments of Advocate General Lagrange in Kledingverkoopbedrijf de Geus en Uitdenbogerd: Just like one does in cases of obscurity or contradiction in the interpretation of domestic law, one has to look at the context and spirit of the text. Literal interpretation will not convey the clarity which will be obtained by starting off from the meaning and aims.31

The result is that: ‘Systemic’ criteria are thereby prominent in the Court’s reasoning at two different levels. One level is coherence among norms … A second level of systemic reasoning is the EU legal order taken as a whole, i.e. that the interpretation of a norm ought to be consistent with the larger ‘object and purpose’ of the Treaties. It is by providing the Treaties with an overarching meaning—a meaning that may independently infuse EU law—that the Court’s ‘Communautaire tendency’ becomes most apparent.32

This is where the second aspect of the courts’ approach to reasoning becomes apparent. They are pushed away from a linguistic approach thanks to the textual difficulties of reasoning against 24 different language versions. They are drawn to a meta-teleological approach thanks to the constitutional set-up of the Union. This aspect and general approach of the ECJ to interpretation was expressed in Van Gend en Loos33 and in Commission v Netherlands34 where it was outlined that, at its most basic level, the particular legislative provision must be interpreted in light of its aims and purposes. This is designed to be a solution to linguistic ambiguity, at least in part. As Advocate General Léger made clear in Schulte v Deutsche Bausparkasse Bardenia ‘[w]here it is difficult to interpret legislation from its wording alone, an interpretation based on purpose becomes fundamental. That is the case where the provision in dispute is ambiguous’.35 Such a statement is non-committal as to the scope to be given to such aims and purposes, and as to whether or not certainty and commitment to the rule of law rank amongst such aims, but it is clear that the twin impact of linguistic ambiguity and a treaty-based constitution produces a situation in which teleological interpretation becomes prominent. The shape given to the doctrine of effectiveness in Bahuis36 however is highly instructive in this regard. As Fennelly highlights, ‘this constant companion of the chosen method [teleological approach to interpretation] leads the court to seek above all, effectiveness, consistency, and uniformity in its case law and in the application of Community law’.37 Such a statement is entirely consistent with one of the aims of the legislation being certainty of application. It is perhaps for this

31 Case 13/61 Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH and Maatschappij tot voortzetting van de zaken der Firma Willem van Rijn [1962] ECR 00045, opinion of AG Lagrange, translation by Bengoetxea, Legal Reasoning (n 27) 232. 32 Dawson, ‘European Court of Justice’ (n 28) 426–27. 33 At n 23. 34 Case C-144/99 Commission v Netherlands [2001] ECR I-03541. 35 Case C-350/03 Schulte v Deutsche Bausparkasse Badenia AG [2005] ECR I-09218, [87]. 36 Case C 46/76 Bauhuis v Netherlands [1977] ECR 5. 37 Fennelly, ‘Legal Interpretation’ (n 25) 674.

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reason that the pull of the teleological approach in terms of the constitutional make-up of the Union has been doubted by some. Conway for example argues that the idea that interpretation should be purposive because the Treaty contains aims for the Union to follow is mistaken, that ‘purely outcome-orientated legitimacy … fails to accord value to democratic process’.38 He argues that the Treaty and its text are a product of a democratic system, albeit a representative democracy at a level removed. The same can be said for the text of legislation. Although it is not the product of a directly elected national Parliament, it is the product of a democratic-bureaucratic process, the establishment of which was itself democratic, and as such, the text thereby produced should be treated as a enactment of that democratic process, not merely a background against which aims are to be pursued regardless of the wording actually employed. Thus, there is a question as to whether the meta-teleological approach is justified on the grounds of the purpose-based nature of the Union, but certainly as the reasoning of the ECJ shows, this is part of the reason why such an approach is adopted. If we look closer however, what becomes clear is that the ECJ in environmental cases is not in fact taking this broad purposive approach. It is taking an approach that prioritises environmental protection above the other aims of the Union, including above the aim of harmonisation and integration (the meta-purpose of the Union). Environmental law may not be unique in this respect, but there is no doubt that in the environmental context effectiveness is coupled with case-by-case decision-making that relies on environmental protection as the sole aim of the legislation. This was demonstrated above. What is important going forward is to realise the extent which this actually conflicts with the general tenor of the ECJ’s meta-teleological approach. For example, as Slynn notes, in Administration des Douanes v Gondrand Frères,39 ‘the Court insisted that rules imposing charges on the taxpayers must, in the interests of legal certainty, be clear and precise’.40 In other contexts it is by no means clear that the ECJ takes the policy goal of a legislative intervention as the only element of a teleological approach to interpreting that provision. Thus the primary legal problem to be overcome in the environmental context is the selective adoption of purposes by the ECJ in the environmental context. What must be recognised and made explicit is that, ‘the Court interprets the EC treaty as creating a Community governed by the rule of law’.41 Indeed, as was shown in chapter three, legal certainty is a guiding principle of EU law. It is important to go beyond environmental protection as the only purpose. As discussed above the prevailing regulatory culture in this area has prevented such a step, but there are grounds within the texts of the European regulations to allow 38 G Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge, Cambridge University Press, 2012) 101. 39 Case C 169/80 Administration des Douanes v Société Anonyme Gondrand Frères and Société Anonyme Garancini [1981] ECR 01931. 40 G Slynn, ‘The Court of Justice of the European Communities’ (1984) 33 ICLQ 409, 414–15. 41 Fennelly, ‘Legal Interpretation’ (n 25) 678.

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for the development of a more principled approach without flouting the general jurisprudence of the ECJ. The feasibility of such becomes clear if the approach of the ECJ in general terms is examined. The reasoning of the ECJ has recently received detailed consideration by Conway. His starting point is to highlight that, ‘what marks the ECJ out above all as a court is a tendency to meta-teleological or broad, system-level purposive interpretation’.42 What is unusual therefore is that in an environmental context, such a purpose is not explicitly present. Rather, a much narrower purpose is used to drive interpretation. Thus even on the ECJ’s own terms, a difficulty arises: ‘the level of generality at which purpose is stated, in other words, how broadly it is stated’.43 The absence of consistency in selecting purpose, and the degree to which purpose includes or not includes certainty, is itself a problem for the principles of formal justice. Such is confirmed by considering the contrast in approach between CILFIT44 and UPA45 which pursues a textualist interpretation, in contrast to the intergrationist, meta-teleological approach in CILFIT. Recognising interpretive considerations beyond broad purpose, or narrow purpose in an environmental context, is therefore an important consideration for the ECJ in general. ‘Predictability’, Conway argues, referring to Tamanaha, ‘entails a relatively clear, shared criteria of interpretation’.46 Thus, not only is the ECJ referring to a more certainty-based approach to interpretation, as demonstrated above, in general terms it also lacks any consistent approach to interpretation across sectors. This inconsistency itself could provide an opportunity to manipulate the approach of the ECJ to achieve a greater degree of legal certainty in relation to environmental law. Before demonstrating how such a manipulation might take place however, it is important to understand why the environmental context might have resulted in the narrow purposive approach, rather than the broad purposive approach outlined above which promotes, amongst other things, certainty. There is of course no definitive explanation for this. However, it is suggested that a number of issues may converge to produce this effect. Firstly, as suggested above, the uncertainty that pervades environmental law regulation—both scientific uncertainty, and due to a lack of relevant legal experience, legal uncertainty—means that the courts are aware of the difficulties in legislating to produce intended consequences. The difficulty in producing environmental law which achieves its outcomes might encourage the courts to support the outcome by undermining the integrity of the particular legal text. Secondly, the courts are certainly aware of the difficulty involved in regulating risk. This is linked to the first factor, but adds an additional layer of complication, since the courts are working in the hypothetical. Normally when considering

42 43 44 45 46

Conway, The Limits of Legal Reasoning (n 38) 2–3. ibid, 20. Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR-03415. Case C-50/00 Unión de Pequeños Agricultores v. Council [2002] ECR I-6677. Conway, The Limits of Legal Reasoning (n 38) 92.

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damage or detrimental effects on the physical world, those effects would already have taken place. A layer of complexity would be removed from the judicial decision. In the environmental context therefore, since such complexity has not been removed from the process, the courts are aware that they must make a decision as to likely outcome. This produces a situation where they have to make reference to what is being avoided and why. It is not simply a question of pointing to a physical state of affairs. To assess the level of risk, they need to assess not only the likelihood of the facts coming to fruition, but the seriousness of the outcome as a factor to be balanced against intrusion on liberty, and the chances of the outcome coming to fruition. Once the court engages with this balance, as it must do when assessing risk, it engages with the policies behind regulating that particular risk. This process too may influence the extent to which they promote an understanding of the rule that meets with the reasoning behind the rule in the first place. Of course, in non-risk based situations that courts may also reason in relation to purpose, but in risk-based situations they must reason in this way, and therefore the purpose of the legislation rather than its wording will necessarily come into play. Thirdly, the relatively fragmented nature of environmental law, a result, in part at least, of its relative novelty, means (a) that there are gaps in protection that only emerge after the fact and (b) that there is little to be gained by comparing linguistic considerations or broad purpose considerations across the whole area since that whole area is acknowledged to be unhelpfully messy. In terms of the gaps in protection, the courts will be aware that the regimes relating to environmental protection are, in this sense, a work in progress and will be unwilling to let a situation, unforeseen by the legislature, but obviously damaging to the environment, slip through those gaps. Such an approach will be all the more tempting when there is no overall framework of protection upon which the court can (or must) draw to delineate the bounds of proper regulation in this area. Again, although not demanding a narrow purposive approach, it is relatively easy to see how one might develop under these conditions. Fourthly, arguably the academic commentary and push to rely on the environmental principles as tools to assist in interpretation of environmental legal rules, also promote a narrow purposive approach. The relationship between a linguistic approach and an approach based on the environmental principles is discussed in more detail below, but the obvious and widespread appeal of such principles as a way to assist in interpretation is undeniable. However, these principles are very often used simply as short-cut justifications for taking an approach which prioritises environmental effectiveness. The fact that the Treaty promotes these principles means that their use is legally sound. The interpretation of the principles themselves is however subject to the same narrow purposive approach as is found in relation to other environmental rules. Furthermore, the academic focus on the principles as a means to achieve effective environmental protection will add to this. Finally, and perhaps most importantly, the courts may well be taking a purposive approach to environmental rules because of the very practical importance

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of protecting the environment and the urgency of so doing. Add to this the need to, effectively, change a cultural understanding of what property rights allow the holder of those rights to do, and it is clear that the courts have good reasons to try their best to ensure that the legislation is effective, and not by-passed by those who have the resources and financial incentives to avoid them. What ought to be recognised however is that the justified goal of seeking environmental protection is not the only criterion which goes into assessing the legitimacy of legislation or of the approach of the court. There is more to it than this and achieving environmental protection is not enough to mean that the rules are good law. The reasons for the narrow purposive approach in environmental law are therefore understandable. How is it possible to get around this, and to use the general meta-teleological rhetoric of the ECJ in its most significant decisions, to produce a more certain approach to definitions and interpretation in the environmental context? How can we bring legitimacy to this interpretation, without breaching the rules established by the ECJ? The solution, as outlined above, is to embrace legal certainty, as defined earlier, as one of the broad aims of the European legal system. That such is an aim of the legal system is apparent from the constitutional case law discussed above. It has simply been sidelined in relation to environmental law. There is scope however within the drafting of the rules themselves to highlight the broader purposes of the legislation, and thus to provide the springboard from which a shift in the approach of the ECJ can be fostered. The more nuanced approach to defining waste as exemplified by the by-products and end-of-waste stipulations in the Waste Framework Directive 2008 (WFD 2008),47 and the call in the WFD 2008 itself to increase certainty in this area,48 combine to suggest that at a legislative level within the EU there is an aim to increase the levels of certainty. Such an interpretation does derive some support from the decision in Van Gend en Loos itself. Regard must be had to ‘the spirit, the general scheme and the wording’ of the particular provision.49 These criteria for interpretation are sufficiently flexible to include within them the framework advocated here. Reliance on the wording shows the possibility of taking a primarily linguistic approach, and reliance on the spirit of a regulatory measure allows the court to examine issues such as consistency, predictability, and equality of application. Furthermore, in Merck, the ECJ demanded that the national court consider ‘not only its wording, but also the context in which it occurs and the objects of the rules of which it is a part’.50 This statement clearly feeds into level three of the framework and demands that the rules be seen as part of a wider whole. In relation to the WFD 2008, it can be argued also that the preamble is helpful in showing that effectiveness is not the only criterion by which we ought to interpret the waste legislation. It is true that ‘the first objective of any waste policy 47 48 49 50

WFD 2008, Arts 5 and 6. WFD 2008, preamble [8]. Van Gend en Loos (n 23). Case C-292/82 Merck v Hauptzollamt Hamburg-Jonas (n 24) [12].

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should be to minimise the negative effects of the generation and management of waste on human health and the environment’.51 In taking a purposive approach, as courts and enforcing authorities therefore are directed to do, such bodies are however able to take other things into account, in particular certainty and clarity. This is demonstrated at various points in the preamble. For example, the aim of the WFD 2008 is said at paragraph 2 to be to clarify the distinction between waste and non-waste. This is confirmed in paragraph 22, concerning the definitions of end-of-waste status and by-products. Similarly, paragraph 10 emphasises that, ‘effective and consistent rules should be applied’. Effectiveness is a priority but is not the only criterion by which success should be assessed. Instead, others should be considered, ‘in order to promote certainty and consistency’.52 Finally, the preamble at paragraph 45 requires that, ‘effective, proportionate and dissuasive penalties’ be put place to support the rules laid down in the Directive. Again, therefore, although effectiveness is prioritised, it is not the only marker of good interpretation of the regime. Thus the ECJ in encouraging a teleological approach, in relation to this regime at least, must advocate an approach which is not only effective, but is also consistent and certain. Matters are slightly more complex however in relation to the Habitats Directive (HD). Here the preamble is not concerned with the consistency or certainty of the ensuing rules. Instead, the aim of the regime is simply ‘the preservation, protection and improvement of the quality of the environment’.53 This difference between the two Directives is easily explained when the background to the 2008 WFD is considered. The HD, unlike the WFD 2008, was not introduced to solve a problem of uncertainty and inconsistency in a previous system. It is therefore no surprise that the preamble contains no reference to these other criteria with regards to the purpose of the regime. Nevertheless, even if taking a purely purposive approach to the HD, it is commonly argued that consistent, certain rules are more likely to be effective overall because they allow an individual to plan their affairs on the basis of the rule. This argument could provide an excuse to bring the criteria of certainty into the interpretation of the regimes without abandoning an outwardly teleological approach. Such an excuse ought not to be needed, but if one is needed, this provides the opportunity to interpret in a more principled manner. It is possible to integrate the principle of environmental harm into the framework of interpretation therefore without infringing the purposes outlined in the preamble to the Directives. We can therefore remove this barrier to change, whilst remaining aware of the temptation to focus solely on effectiveness that comes out of the preambles. This is likely to rub-off onto the approach of the courts taken to the purely national law site of special scientific interest (SSSI) system given its close connection with SPA/SACs and the fact of simultaneous designation. Given the 51 52 53

WFD 2008, preamble [6]. WFD 2008, preamble [10]. HD, preamble [1].

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regulatory context of the national law provisions, and the expressed preference of the national courts for taking a more principled approach overall, such an outcome is also likely in the purely national context if the expressions as to purpose made by the ECJ in Waddenzee54 can be overcome. As far as the contaminated land provisions are concerned, the more significant barrier is the statutory guidance as discussed below,55 but as far as the ECJ is concerned, it is suggested that the primary driver for interpretation beyond the guidance as things stand is likely to be the jurisprudence relating to the ELD given the similarity of context. Consideration of the preamble of the ELD is therefore useful here to determine whether again certainty and predictability form part of the expressed aims of that Directive. It is clear that certainty does form part of the aim of this Directive. At paragraph 5 of the preamble, when outlining that environmental damage should be interpreted consistently across the ELD, HD, Wild Birds Directive (WBD) and WFD 2008, it is stated that ‘[w]hen the concept in question derives from other relevant Community legislation, the same definition should be used so that common criteria can be used and uniform application promoted’. Additionally, at paragraph 24 there is a recognition of the importance of considering the interpretation of the regulatory provisions from the perspective of the regulated. The paragraph states that, ‘[i]t is necessary to ensure that effective means of implementation and enforcement are available, while ensuring that the legitimate interests of the relevant operators and other interested parties are adequately safeguarded’. The safeguarding of these legitimate interests requires that the application of the regime be predictable. As with the other directives therefore, there is some scope here for taking a principled approach. This will work in hand with the other connected directives, the national law conservation provisions, and the national law contaminated land provisions. In a sense, the ELD provides the link between these different regimes, and in so explicitly providing for certainty in the preamble, this Directive too and its implementation can be the catalyst for a shift in the environmental law jurisprudence of the ECJ, and a means by which the national courts can adopt the approach to interpretation discussed here. As a result, if there is sufficient will, the current approach of the ECJ can indeed be overcome. Thus, although requiring determination to achieve certainty, a determination found in relation to other rules within in the Union legal system, there is scope within the legislative framework to change the interpretive approach of the ECJ in relation to environmental law. However, it has been argued that this shift should be from the narrow purposive approach—achieving environmental protection— to a broad purposive approach, achieving compliance with rule of law values. Both however, are purposive. Finally, therefore, it must be addressed whether, in 54 Case C-127/02 Landelijke Vereniging to Behold van deer Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserrij [2004] ECR I-7405 (Waddenzee). 55 See p 189 in this book.

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pursuing a meta-teleological approach it is possible to prioritise linguistic considerations. What is the boundary line between purpose broadly defined, including certainty, as the primary driver for interpretation, and using the text as the primary driver? Once this is discovered, it must also be shown that the linguistic ambiguity outlined at the outset of this section can be overcome. In simple terms, is it in fact possible to rely on linguistic considerations as the primary focus of interpretation in the EU context? To take a linguistic approach we need to acknowledge that is a difference between trying to achieve a certain outcome—eg environmental protection, legal certainty, protection of fundamental rights—and using that goal as a means of interpretation. To achieve the meta-goals of the EU, it is not necessary, and indeed may be counter-productive, to use those goals as the primary focus of the courts when they are engaging in interpretation. In order to achieve certainty we need to see it is a process and interpretation is the means to achieving certainty. It is suggested that the best way to achieve the outcome of legal certainty, ie to treat it as an end, rather than a means to an end, is to see that the process of interpretation must prioritise that certainty, and the most effective way to achieve this is to rely on the text as promulgated. As Conway argues, ‘a shared understanding of ordinary meaning allows the communication of a democratically mandated legislative or constitutional content to the courts and the easy working of the law in a legal system’.56 Relying on ordinary meaning produces a general, shared understanding of what legal rules mean, increasing certainty, linking the rules with a moral clarity that both legitimises and produces further certainty, and provides a clear basis for the development of a detailed and nuanced jurisprudence. In short, the goal is legal certainty, and the way to achieve this is linguistic interpretation. Thus, in summary, the ECJ is currently talking, in relation to environmental law, a narrow purposive approach. This was demonstrated in chapter six. In order to adopt a new approach to interpretation which relies, primarily, on a common law approach to linguistic interpretation, tailored to the environmental context, this approach of the ECJ will need to change. The national courts cannot take a different approach from that of the ECJ without breaching Union law. The potential for such a change has been explored in this section. It is suggested that such a change is possible, and that this can be derived from the case law of the ECJ itself. The ECJ in general terms takes a broad, meta-teleological approach, where one of the aims of the Union is said to be legal certainty and compliance with the rule of law (see also Article 6 Treaty on the Functioning of the European Union (TFEU)). This broad purpose is subsumed in environmental cases in favour of the sole purpose of environmental protection. However, it is possible to find within the legislative text of the environmental protection regimes some grounds for taking the certainty-focused approach suggested and given the jurisprudence of the ECJ in general, it is possible that it would be persuaded by such an argument.

56

Conway, The Limits of Legal Reasoning (n 38) 133.

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In order to achieve this broad aim however, the most successful approach will not be to reason with the goal of legal certainty as the criterion for good interpretation. Such certainty is achieved by a clear framework for interpretation based upon sound interpretive considerations, the primary of these being linguistic focus on the ordinary meaning of the words used in a legislative enactment. It has been shown elsewhere in this book how that approach increases certainty. It has now been demonstrated that one of the main barriers to adopting a new approach—the jurisprudence of the ECJ—can in fact be overcome once the reasons behind the ECJ’s approach, and its approach in general terms, is understood.

B. Statutory Guidance The current statutory guidance presents a legal and practical obstacle to the adoption an approach to interpretation that prioritises certainty by focusing on language and judicially-defined harm. It is problematic for the national law rules relating to contaminated land. Although for ongoing contamination issues the ELD is now the primary mode of regulation, for historical contamination the Environmental Protection Act 1990 (EPA 1990) is still critical. The recently updated guidance poses a problem for a shift away from an explicitly effectiveness-driven approach. The new guidance has made binding certain aims of the provisions, as outlined above. For clarity these were: (a) To identify and remove unacceptable risks to human health and the environment; (b) To seek to ensure that contaminated land is made suitable for its current use; and (c) To ensure that the burdens faced by individuals, companies and society as a whole are proportionate, manageable and compatible with the principles of sustainable development.57

The most significant of these for the purposes of promoting a change is the third. In ensuring the burdens are proportionate, arguably they must be clearly identifiable in advance and of equal and certain application. Although the goal of environmental protection is therefore clearly the main purpose here, the subsidiary purposes expressed in (c) provide scope to take up a new approach to interpretation. This barrier too can therefore be overcome.

III. Examples in Practice The existing approach, the problems this causes, and the theoretical shape of the solution have all now been outlined. It has been shown that this solution can be adopted and that any perceived legal barriers to such an adoption can be 57 DEFRA, ‘Environmental Protection Act 1990: Part 2A—Contaminated Land Statutory Guidance’ (London, DEFRA, 2012) 5 at [1.4].

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overcome. All that remains to be seen is how this tool will actually operate in practice. This section considers two issues. Firstly, it examines the key terms within the regimes and demonstrates how the framework for interpretation outlined here operates in relation to those key terms. It will then very briefly reconsiders some issues raised above in chapter five to show that the new approach would help to solve the problems discussed in that chapter.

A. Interpretation of the Key Terms (i) The Waste Regime To recap, the key terms in relation to the waste regime were ‘deposit’ and ‘discard’. How can the approach outlined in chapter seven help the national courts to interpret these provisions more certainly, more legitimately, and more consistently? The court is being asked to tackle a problem of damage, and of risk. It must do so through the medium of subjectively defined words, at least in the case of ‘discard’. Whether or not an item has been discarded, is intended to be discarded, or must be discarded, depends, at least in part, on the subjective intentions of the holder of the material for the time being. It is accepted that, especially given the different languages in which waste is defined, a strictly linguistic approach, although the starting point, will not be enough to ensure consistency and certainty here. Rather, the second stage of the framework will provide that certainty through the principle of environmental harm. The subjective discarding test is a question of risk assessment. This reflects the fact that it is designed to cover materials that may be abandoned, before they are so abandoned. The current overall mode of interpretation being used involves two stages. Firstly, the term ‘discard’ must be interpreted in such a way that advances the goal of environmental protection. Secondly, the definition of waste is not dependent on whether or not the particular use of the substance is harmful to the environment, but is instead based on the subjective notion of ‘discard’ which cannot be interpreted narrowly. When faced with the question as to whether or not a substance is waste, therefore, the court or enforcing authority has two options. Firstly, it can reason by analogy with previous case law. The risk of this is that such an approach may well fall foul of the ECJ’s desire to ensure a purposive interpretation and therefore arguably each ‘not waste’ conclusion needs double scrutiny to ensure that the right decision has been made. The court would therefore need to find assistance in those cases where relevantly similar situations have been concluded elsewhere not to be waste. Secondly, it can attempt to reason on the basis of principle, as domestic courts seem to want to do. In order to do so it must actually have a worked out framework of principles to feed this process of interpretation. This is where the principle of environmental harm can prove helpful. Discarding as a verb has at its heart abandonment. Thus, the harm in waste lies in the holder of a substance abandoning responsibility for the future of that substance. In accordance with the ECJ’s jurisprudence, the harmfulness of abandonment does

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not come from the impact that this may have on the environment as such. Instead, the harmfulness comes from the fact that there is a substance on whoever’s land for which no one considers itself responsible. If holders of rights in land are permitted to abandon responsibility for a substance placed either on their own land or on another’s land, as in the case of fly-tipping, then this substance is no longer under any person’s active control. This undermines the security and integrity of land rights in that it risks such substances cumulating to leave land of a lower value—both use-value and monetary value. As a result the principles of environmental harm would allow regulation to prevent a person from abandoning responsibility for a substance. It is this notion that is encapsulated, it is argued, in the verb ‘discard’. Therefore waste is any substance for which no person claims or intends to claim responsibility. The mischief tackled by an offence which relies in part on the notion of discard is a mischief that comes about because of the adoption of a subjective state of mind of no longer owning responsibility for that particular substance. When looked at from this perspective we can see why as a matter of principle it is inappropriate to cover substances such as residue fuels which are reprocessed and then used for another purpose. It may well be that there is a good reason to regulate such substances, but it should not be regulated under the umbrella term of waste relying on the notion of discard. In evidence in the domestic courts is an instinct that such substances should not be covered by the waste legislation. Reference to environmental harm can therefore explain why such substances are not waste. When the principle of environmental harm is fully articulated in this sense, the definition of waste becomes linguistically meaningful, and more certain of its application. In relation to the interpretation of the word ‘deposit’, we can again consider Milton Keynes DC v Fuller and McVeigh.58 There the court concluded that resting waste tyres on the public verge to allow access to a field where these tyres had been unlawfully dumped does not constitute, in itself, a deposit. The notions of repetition or continuousness taken from nuisance and integrated again into the concept of mischief can be used to help interpret the meaning of the word ‘deposit’ on the basis of a better understanding of harm. To reiterate, the question in the case was whether that second movement constituted a deposit given that the material had already been deposited. It was concluded that it was not a deposit. The most effective environmental protection may well be achieved by stopping not only the initial deposit by the third party, but also by stopping the movement of the waste onto the verge. The court however came to its decision through the process of statutory interpretation: ‘in the absence of any definition of “deposit” in the EPA 1990 it seems to me that is meaning must take its colour from the context in which the word is used in the statute’.59 It therefore concluded that ‘in this case there is no question 58 59

Milton Keynes v Fuller [2011] EWHC 1967 (Admin), [2011] Env LR 31. ibid [26].

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of law involved in the interpretation of the ordinary and uncomplicated English word “deposit”’.60 Thus, the first, linguistic stage rules out certain interpretations of the term. The second stage, examination of environmental harm, therefore allows a court to take account of environmental protection, but only in the sense that it appears in the wording of the statute itself. Here, the key issue is the laying down of material onto land. This is very broad and somewhat ambiguous as the basis for a criminal offence. The first thing to note is that there is nothing really uncomplicated about the word deposit. At its broadest, simply moving the waste from one part of land to another would be sufficient. At its narrowest, it could be taken to mean abandonment only. A purely linguistic solution is not possible. Instead an approach which either (a) covers as much as possible or (b) selects a meaning and attempts to apply it despite a lack of theoretical basis for the selection of such a meaning must be chosen if no principles are articulated to assist in the selection of breadth of definition. An understanding of mischief which sees the regulations as part of an overall context of a statutory framework which attempts to control use of land therefore can assist here. Thus stages two and three are both important. In Fuller,61 the defendants took waste off their own land and moved it onto the public verge. As a matter of property law this could well constitute a trespass/ nuisance, but in terms of ‘harm to the land community’ writ large what we can say is that it matters not from the perspective of the overall value of A and B’s land whether the waste is left on A or B’s land as long as there is no material difference between the effect of the waste on that land (using risk assessment and our best understanding of scientific data). If there is no material difference then the movement of the waste cannot be said in any real sense to be an activity that every member of the land community has an interest in preventing. It is not more harmful for waste to be moved from one area of land within the community to another. We can draw an analogy with nuisance. In Re Aldred’s case62 it was stated that ‘the law does not give an action for such things of delight’.63 From the perspective of the totality of the land community, the existence of the waste is harmful, but further movement of that waste may not be. An individual wanting to prevent the waste being transferred onto their land is requiring that their land be prioritised over other land within the community. Thus from the perspective of environmental harm the court was right to conclude that there was no deposit here. By articulating the reason for the court being correct here however, we help to ensure consistency of approach going forward. The approach taken in Thames Water v Bromley Magistrates’ Court64 is also compatible with the approach to interpretation advocated. It relies on a certain 60

ibid [39]. ibid. 62 (1610) 9 Coke Reports 57b, 77 ER 816 (KBD). 63 ibid. 64 Thames Water Utilities Ltd v Bromley Magistrates’ Court and the Environment Agency [2013] EWHC 472 (Admin), [2013] Env LR 25. 61

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and predictable approach, looking at the meaning of the word in plain English and considering the statutory context. It also accords with the idea that the ‘harmful’ element of waste deposits from a land community perspective is the abandonment of responsibility over a substance, whether or not that abandonment was deliberate. In that case the deposit was committed by the accidental escape of sewerage from Thames Water’s sewage pipes. Thames Water therefore, albeit accidentally, abandoned responsibility or control over this substance. Given this, the substance not only became controlled waste—ie met the definition of discard—but was also deposited. Allowing such accidental deposits is also harmful to the interests of the land community. It is clear that such accidental deposits come within the mischief tackled by this particular statutory provision. Thus in defining controlled waste, the purposive approach can be sidelined. Controlled waste would be a substance for which the holder intends to, has to, or has abandoned responsibility. This is a significantly narrower test than exists currently. This notion of abandonment also covers the definition of deposit. Since section 33(1)(a) of the EPA 1990 requires the deposit to actually have taken place, abandonment of responsibility or control would be needed. Intention to abandon such responsibility in this sense would be irrelevant. Furthermore, we could also say that any substance for which there is a market, whether or not it may do harm to the environment, is unlikely to be abandoned by the holder of such a substance if he intends with or without processing to sell such a product. This would remove the need for an end-of-waste status and for the by-product exception. The existence of a market for the product would remain relevant, but the requirement that the product must have a market without further processing would not be. Therefore the considerations relevant to interpretation would be: the degree to which the holder accepts or intends to accept responsibility for the substance (the threshold criterion for the regime to apply); the fact or not of such an abandonment (which would be the actus reus); and then, depending on which element of section 33 is being considered, keeping in mind that criminal offences should be interpreted strictly, whether or not that abandonment was done knowingly. This, it is suggested, is a more useful approach to interpretation than that advocated by the ECJ, and it is one which aligns with the narrower, more traditional approach to interpretation represented by the decisions of the domestic courts. In interpreting the terms ‘discard’, ‘deposit’ and those other terms discussed here, the interpretation above would protect human health and the environment, although it would not be trying to solve every environmental problem by interpreting the provision broadly. It would be proportionate to the risks posed by waste. It can give rise to consistency and certainty. By making clear what actions will attract liability and what substances this applies to, it is suggested that this would improve compliance. Finally, it would encourage responsibility since it is only by abandoning responsibility that the criminal liability would be engaged. Increased certainty, in short, would be achieved.

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(ii) Contaminated Land Similar results can be seen when the threshold terms in relation to the contaminated land provisions are considered. Here, the relevant damage done to the land is clearly and consistently defined in the guidance thanks to the tables and clear specifications as to what impacts on human health with constitute harm for the purposes of the regime. There are however difficulties in the regime in applying the risk assessment process, and in interpreting the relevant relationship with the land. Firstly, considering risk assessment, the relevant question is whether there is a significant risk of significant harm.65 Local authorities acknowledge that they have difficulty in interpreting the definition of contaminated land in the regime, particularly as regards risk assessment.66 Given the widely different approaches to contaminated land, it is perhaps not a surprise that there is no consensus as to how to handle risk. How can the framework help here? It is clear that as a matter of language, significant should be taken seriously. It is not, as was suggested in Raffinerie Mediterranee, simply a matter of considering any risk at all as significant.67 As a matter of language it is also clear that the risk of the harm could be so significant in itself that the mere existence of the risk justifies liability. Understandings of environmental harm will interact with the precautionary principle to justify liability even where the risk itself is not proven likely to occur but where the harm that is risked is sufficiently serious. Identifying these two different understandings of risk from a linguistic perspective therefore allows the meaning of significant risk of significant harm to be understood. Significant risk tells us that the risk itself must be so serious as to be causing harm. It must therefore undermine confidence in the system of land ownership. This suggests a strict interpretation. Significant harm therefore is a function of the definition of harm contained in the tables and guidance. The precautionary principle makes each of these issues easier to prove and is filtered into the assessment through the second stage—identification of mischief. It must be shown therefore, that the damage would be a setback to the interests of those with rights in the land in the same community of landowners in which the land is found. It must also be shown that such a risk is foreseeable at the time of the act or omission etc so that allowing the risk to go unaddressed is itself harm as it represents an abandonment of responsibility for the potential consequences of the action. The precautionary principle becomes relevant to damage, and not

65

EPA 1990, s 78A(2). Environment Agency, ‘Reporting the Evidence: Dealing with Contaminated Land in England and Wales—A Review of Progress from 2000–2007 with Part 2A of the Environmental Protection Act’ (Bristol, Environment Agency, 2009) 22–24. 67 Case C-378/08 Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo Economico [2010] ECR 00. 66

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to harm. Local circumstances then become relevant to the question of the harmfulness of the damage. It can therefore help to clarify risk assessment. The framework can also be used to explain the allocation of liability under the regime. The difficulties here were demonstrated by R (National Grid Gas) v Environment Agency68 where Lord Scott supported the Environment Agency in largely excluding ‘homeowners’ by putting too much weight onto the polluter pays principle.69 The definition of the Class B occupier test is likely to prove problematic because we do not have a handle on the relevant relationship with the land and why this might lead to liability/duties. A particularly problematic case in this regard is that of R (Crest Nicholson) v Secretary of State for Environment.70 The act of leaving soil uncovered was in itself held to be a cause of contamination because soil that was not previously contaminated became contaminated thanks to rain washing substances further into the soil. This is therefore a case of criminal liability by omission. If Crest Nicholson had not been liable as a Class A person, it may have become liable as a Class B person as a result of being the owner of the land. The distinction between Class A and Class B persons however is relevant not only to the existence of liability, but also as to how that liability is handled. Consideration of the mischief tackled, and of the land community, can tell us when liability should be attached through the relevant relationship with the land, and can therefore help with interpretation of the key terms of cause, knowingly permit, and occupier. Owner is clearly defined in the legislation.71 The approach to interpretation should be affected by this more detailed explanation as to where liability is deserved—when is it justified to subject a person to the potentiality for criminal liability by the serving of a remediation notice and or a request for costs? It will be justified in order to prevent them from causing environmental harm. Causing is therefore obvious grounds for liability. Interpretation of ‘knowingly permit’ can relate to whether or not the permitting of the contamination constitutes an abandonment of responsibility over that land. This would seem to require more knowledge of the substance and its effects than was present in Crest Nicholson. This fact can explain why there is anxiety over that decision. Finally, as far as occupation is concerned, the notion of the mischief tackled would justify the imposition of liability where the occupier of the land was in a position to control that land and therefore is responsible for it in the same way as an owner. The test in Stevens v Bromley LBC72 for occupier which relates to control would therefore be appropriate in the contaminated land context. The framework in chapter six can therefore reform the process of interpretation of the central terms within the offence created by the contaminated land provisions. The difficulties that were in evidence in the review above, but also in 68

R (National Grid Gas) v Environment Agency [2007] UKHL 30, [2007] 3 All ER 877. ibid at [21]. 70 R (Crest Nicholson) v Secretary of State for the Environment [2010] EWHC 1561 (Admin), [2011] Env LR 1. 71 EPA 1990, s 78A(9). 72 Stevens v Bromley London Borough Council [1972] Ch 400 (CA). 69

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the comments by local authorities, can therefore be tackled by the introduction of a new approach to interpretation that asks something other than how can this term be interpreted in the way most likely to achieve environmental protection?

(iii) Nature Conservation Provisions Finally can this framework also be useful in the nature conservation context? The key terms here are: the definition of ‘operation’, ‘likely to damage’, ‘adversely affect the integrity’, ‘significant’ and ‘occupier’. All three aspects—the nature of damage, the relevant relationship with land, and the principles of risk assessment are important here. The process of using the principle of environmental harm for interpretation is however essentially the same as above. Once again, although a purely linguistic approach can rule certain interpretations out, it cannot fully explain the meaning of each provision. Rather, the concept of environmental harm must also be considered. Harm is caused where the owner or occupier of the land carries out an operation specified in the notification as one which is likely to damage the land. In carrying out such an operation he abandons the task given to him to ensure that the special interest, ie something of value, on his land is maintained. Once the operation has been identified then, the principle of environmental harm will justify liability for carrying out that operation without consent. It can also feed into the earlier stage however, the identification of operations likely to damage the special interest, via the process of risk assessment. As highlighted above, the likelihood of relevant damage here would be addressed by considering whether or not the outcome which is possible is harmful, and then using the harm principle and the precautionary principle to come to a balanced approach to the acceptability of risk in this context. In relation to ‘operation’ there is currently little case law beyond the fact that we know this should be interpreted broadly as seen in Sweet.73 ‘Likely’ in the national context is however being interpreted narrowly if the approach in North Uist74 is followed, and broadly in a European context as seen in Feeney75 and Bagmoor Wind.76 To demonstrate the usefulness of the principle of environmental harm, the situation in Waddenzee77 can be considered. In this case the annual mechanical trawl of the Wadden Sea for cockles, which had carried on for many years, needed annual permission. As a result it was concluded that each new permission constituted a plan or project within the definition of the regime and therefore that an assessment needed to be made as to whether it was likely to have a significant impact on the environment. The preamble to the HD, as the court highlighted states as follows: ‘an appropriate assessment must be made of any plan or programme likely to have a significant effect on the conservation objectives of a site 73 74 75 76 77

Sweet v Secretary of State for the Environment [1989] 2 PLR 14. North Uist Fisheries v Secretary of State for Scotland 1992 SC 33, 1992 SLT 333. Feeney v Secretary of State for Transport [2013] EWHC 1238 (Admin), [2013] Env LR 34. Bagmoor Wind Ltd v The Scottish Ministers [2012] CSIH 93. At n 54.

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which has been designated or is designated in future’.78 This, it concluded, meant that the terms plan or project could be interpreted widely and not need to involve any change to the status quo in terms of the physical impacts of that plan. This definition is correct according to the principle of environmental harm (and therefore the approach is instructive in relation to the meaning of ‘operation’) because the fact of the programme already going on does not change the fact that another person in the land community attempting to carry out the same plan would have their plans assessed for compatibility with the regulatory provisions. The existence of the behaviour prior to authorisation does not mean that authorisation should automatically be given. Instead, a fully worked out understanding of the relevant harm here dictates that the project be reviewed to ensure that the continuation of the practice is not creating an imbalance of right or interests on the basis solely on long-standing ‘habit’. The principle of environmental harm takes a different shape to that discussed in relation to waste and contaminated land, as indeed is to be expected. Nevertheless it supports the specific conclusion in Waddenzee that the fact that a practice has taken place previously does not mean that it is exempt from the scrutiny of the regime. Finally, on the question of the definition of occupier, the same approach as was suggested in relation to contaminated land would be taken here. The key question would be one of control such that it could be said that the person had responsibility for the land, and therefore would be liable if he abandoned that responsibility in a way which caused damage to the land. Again, this tallies with the existing national case law on the question of occupier, as explained in Southern Water Authority v Nature Conservancy Council79 which required a degree of permanence on the land before the individual could be considered an occupier. This approach therefore is explained, and rendered more coherent, by adopting a step-by-step process of interpretation.

B. Increasing Certainty This discussion has therefore suggested the new framework might change or supplement the existing approach to interpretation in practical terms. The final task is to consider whether these changes would address the immediate causes of uncertainty outlined in chapter five—the case-by-case approach to decisionmaking; the abdication of responsibility for interpretation to other bodies; the reluctance to articulate reasons; and the incompatible outcomes. It is clear that this approach moves very firmly away from a case-by-case approach. The reliance on language and on a jurisprudential development of the notion of environmental harm, over time demands that the case-by-case approach be abandoned. This in itself would increase certainty, but it will have the knock-on effect of requiring

78 79

ibid [22]. Southern Water Authority v Nature Conservancy Council [1992] 1 WLR 775, [1992] 3 All ER 481 (HL).

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the national courts to articulate their reasoning, and not to leave the process of interpretation to other bodies. The framework outlined here demands that the courts become the primary drivers for interpretation and the process of interpretation demands a high level of reasoning that is articulated and engaged with. This may well lead to apparently inconsistent outcomes in practice—there is still scope within the framework for legitimate disagreement. More case law will lead to more certainty, as the reasoning and principles becomes more stable. This is the opposite of the current situation where more case law increases uncertainty since there is no clear process that allows examination of the threads running through those cases. The framework will help to achieve certainty, and it will do so by changing the process of interpretation, and the principles on the basis of which such interpretation takes place.

9 Conclusions It has been shown that there is a need to change our approach to interpretation of the criminal offences which form the background to much environmental regulation. The new suggested approach is a primarily linguistic one, but one which can use the particular context within which these rules function to provide an environmentally sensitive and yet predictable approach. It relies on a common law method, where definitions are built over time and the goal is for consistency in interpretation. It demands that the judiciary base its interpretation on the language of the statute, and on the decisions of previous cases. It is only if the first four steps of the framework provided for interpretation fail to provide a possible interpretation that the goal of environmental protection becomes relevant. This approach will apply whether the particular forum is one of judicial review—where definitional guidance is still required from the courts, even if the application of the law to the facts is a matter of discretion for an enforcing or local authority—or whether the forum is a criminal court. This approach will be particularly useful as a way of defining trigger terms for central environmental offences. It has also been shown that such an approach is practically possible. There is little doubt that a domestic English court would be happy to move away from the narrow teleological approach which has begun to dominate environmental law interpretation. In the waste and habitats’ protection contexts in particular, the judiciary bemoans the state of the current law, but feels unable to intervene to produce predictable, transparent, and accessible law. In part this is due to the apparent attitude of the European Court of Justice (ECJ), but a closer examination of the jurisprudence of the European Court in all but the most specific environmental cases shows that certainty is also one of its stated goals. Indeed, the principle of legal certainty is a fundamental principle of the Union legal system. The incidental likely increase in compliance with predictable rules, which would proceed from a shift in interpretive practice, may also act as an additional incentive to the judiciary to embrace its judicial function with regards to interpretation. If the framework advocated in this book were to be adopted however, we must look to consider the likely consequences of this. In the previous chapters the consequences in terms of the interpretation of the key trigger terms were examined.

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It was shown that they can be given more transparency and accessibility if the courts follow this new framework. It is important however to examine the wider consequences of a shift in interpretive practice for the compromises explored in chapter two. How would such a linguistic approach, with a common law developed understanding of how environmental harm operates conceptually, allowing for a ‘purpose as drafted’ approach impact upon the relationship between environmental law, and other aspects of the legal system?

I. Property/Environmental Law As noted in chapter two, the current relationship between property rights and environmental law is one both of mutuality of impact, and of uneasy compromise. For the most part, environmental regulation is superimposed on top of property law structures with little attention paid to the impacts that one may have on the other. Environmental law is not integrated into the structures of property law. If we begin to see environmental protection as, in part, a matter of coordination between neighbouring landowners, duties in relation to the environment become inherent in the rights in property that the legal system confers. Reliance on environmental harm as part of the process of interpretation would therefore allow the principles and values of the two systems to be integrated. Furthermore, the approach outlined in this book means that the judiciary moves to the fore in developing that integration. This allows for the principles to be developed over time in a relatively stable way. In so doing, the overall coherence of the legal system is maximised. More prosaically perhaps, an explicit consideration of the role that property rights have to play in the interpretation of environmental criminal law, and the increased certainty that this would bring, makes for a less legally risky environment. Those subject to the rules become better able to plan their activities in accordance with the law as known. This promotes use of land which is both efficient and which protects the environment, rather than hindering development or allowing inappropriate development due to legal uncertainty. The realisation that environmental protection affects the balance of property rights within the system provides a justification for the limitation of property rights. It also articulates the harm that is required for legitimate limitation of liberty. Indeed, if the idea of environmental harm gains traction in the courts, it will become clear that the liberty associated with property rights is not in fact being limited at all. Rather, in order to preserve the overall integrity of the property rights system some control on the use of land with protection of the environment in mind is required. The approach advocated in this book should therefore assist us in developing a harmonised approach to property and environmental law.

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II. Human Rights and the Environment It has also already been shown that due process will be better respected if the approach to interpretation advocated here is taken. The more certain the definition of the criminal offences present in the regimes considered, the better the law complies with the right to a fair trial and with the need for predictability in criminal law. There are however two aspects to human rights protection as relates to the environment. Firstly, there is the issue that environmental protection legislation may violate human rights if not properly articulated. This is the case if prosecution is arbitrary and the law unpredictable, and as has been shown, the interpretive approach discussed here will assist with that. The second aspect of human rights and the environment however is the possibility of a human right to a clean environment. By narrowing the scope of the interpretation of some key environmental offences, there is a risk that the overall protection of the environment is diminished. For those who argue that there is a human right to a clean environment, this development may strike them as regressive. A narrowing of the approach to interpretation need not lower the levels of environmental protection however. What it does reduce is the flexibility that an enforcing authority may have to expand a particular offence category to catch an activity which is not otherwise covered. This flexibility from an environmental protection perspective is theoretically useful, but in some cases it has proved counter-productive, making prosecuting authorities unwilling to act. Uncertainty does not produce effectiveness. Furthermore, the structure of the approach being adopted, ie one which seeks to see rights in land and environmental protection as being part and parcel of the same legal structures, dependent upon each other for their content, allows for human rights in property rights to bolster environmental protection. Finally, by speaking of environmental protection in terms of harm, the language used becomes more compatible with the discourse used in relation to human rights, allowing for a more fruitful discussion where the participants are not speaking at cross purposes. This second aspect of human rights in relation to the environment will therefore not suffer from a more predictable approach to interpretation.

III. Question of Risk A further area of conflict and compromise that was outlined at the outset was the question of regulation of risk. Regulating risk is traditionally problematic from a harm principle perspective because of the difficulty in pointing to a harm where no harm has yet occurred. In environmental protection situations, however, prevention is infinitely better than cure, and indeed, it is possible in many situations

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that no cure is possible. How can a harm-based framework articulate concepts of risk? In this book it has been shown that it is possible for harm to include risk if a clear distinction is drawn between harm and environmental damage. Environmental damage is harm, but that does not mean that environmental damage is required to demonstrate an actionable harm. Instead, risk of damage can itself be harmful where the very existence of risk undermines the confidence in the system of rights supporting the legal structures in place. This approach allows for the accommodation of risk regulation. Furthermore, the scientific uncertainty often associated with risk regulation can also be accommodated within this framework. The precautionary principle can easily be used, not as a matter of interpretation of statutory language, but more appropriately as part and parcel of the question of the existence of a relevant harm. The ability of the framework to account for questions of risk is explained in chapter seven. In essence however, the existence of risk and uncertainty in fact should not be seen as excusing uncertainty in law. The more certain the legal framework can be, the better it is able to operate in the face of risk where the risk can be properly integrated into that framework. It is essential that the process by which decisions are made and evaluated is predictable, and by adopting a framework which is to be used by the judiciary in environmental adjudication, such a process can be created. The new, more certain approach to interpretation is therefore useful in the face of scientific uncertainty and risk.

IV. Jurisdictional Overlap One of the most complex aspects of environmental regulation is the jurisdictional overlap that those studying and applying the law must deal with. In particular this is problematic in relation to the national law/European law distinction. Environmental offences, as we have seen, are present in both systems, and in many cases there is overlap, unsatisfactory transposition, and a lack of a degree of integration into a harmonious system. This is partly as a result of poor legislative drafting when transposing into national law from European law. The waste provisions are a classic example of this. A new approach to interpretation of the existing rules cannot change this. It cannot alter the fact that there are two different offences in the regulatory framework, with slightly different wording, but which, it seems, cover the almost exactly the same ground. What it can do, however, is ensure that there is a consistency of approach to those two different offences, providing a common language and a common ground of understanding between the two. It also means that were a new offence to be introduced through statute, there would be a ready-made framework of land use control into which this new offence could be integrated. By attempting to build what is essentially a common law understanding of the whole—one where systematisation is sought and homogeneity of interpretation preferred—it will, it is

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hoped, become easier to integrate new rules. We will not need to start from scratch in assessing their meaning, but will have an approach which is sensitive to the context of the rules without abandoning a search for principle in that interpretation. It is not being suggested that certainty in interpretation can cure all of the difficulties that the complexity of the hierarchy of legal norms has caused in relation to environmental law. But this complexity does not mean that we need to abandon all search for consistency across rules and for a general framework for understanding. Rather, a secure and predictable interpretation of the core will make a difference in practice to regulator and regulated which ought not to be underestimated simply because it is not a cure-all for the difficulties in applying and understanding land use regulation as a whole. Putting the judiciary at the forefront of this search is useful given the jurisdictional overlaps. The national courts can use the range of legal sources available to them and attempt to produce a body of case law which is helpful in practice, not ‘Delphic’, and certainly not one which essentially leaves questions of the definition of criminal offences as a matter of discretion for the prosecuting authority. It has also been shown that the jurisdictional complexity will not prevent the adoption of a new approach. By relying on the general principles of EU law rather than the narrow purpose of environmental protection, it is possible to adopt the framework advocated here whilst still recognising the important role that the jurisprudence of the ECJ inevitably plays. Thus, the legal complexity is neither a barrier to adopting the interpretive framework, nor will it prevent that framework achieving its goal of certainty. In fact, the framework will itself improve predictability across, as well as within, the relevant legal systems.

V. Interpretation and Legal Reasoning Furthermore, one of the key themes which arises when considering environmental offences is the relevance of interpretation and legal reasoning and the methods employed in these tasks. In one sense this whole book has been concerned with this. But it is worth, in the final analysis, returning to the broad question of interpretation and the proper judicial role. Throughout this book it has been argued that the narrow teleological approach to interpretation that exemplifies the approach of the ECJ and which is often replicated, even where not required, in the approach of the national courts, is the cause of uncertainty in interpretation. Such an approach, it has also been shown, is problematic and not necessary. In order to accept this, we need to think more deeply about the proper judicial role, and the function that the judges ought to play within a legal system. When the judiciary aligns itself with the purpose of the legislature, two things occur. Firstly the judiciary can show itself to be respectful of the wishes of that democratic body. By promoting the aim on the basis of which a particular provision was brought into law, the courts, to a certain extent limit the

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scope of their role. In this way they make themselves a mouthpiece or agent of a legislature. Secondly, the courts also potentially lose their role as guardian of legal principle and of rights. By bowing too much to the will of the legislature, they risk their function in a system of separated powers. Thus, as discussed throughout, a balance needs to be struck between giving effect to the will of the legislature, and ensuring the integrity and independence of the legal system. Pursuing a primarily purposive approach, does not, it has been shown, promote a satisfactory balance. Too much of legal worth is sacrificed in pursuit of a purpose. Legal certainty, when not considered as an instrumental value, but rather seen as intrinsically valuable, ranks with purpose as a goal to be achieved and ought not to be considered merely an adjunct to that purpose. Taking this approach allows for a re-balancing of the judicial role in favour of giving predictable and certain interpretive guidance, even if that removes a degree of flexibility from a prosecuting authority. Furthermore, the tendency in the judicial review case law in particular to defer questions of law to the regulatory authority ought not to be seen as an appropriate allocation of responsibility. By taking an approach to interpretation which is primarily linguistic, rather than purposive, the risk of deferring to a regulator is diminished since the court is clear in its defined role. As part of this, the court can move away from a purposive approach to reasoning and instead take a linguistic approach. There is no doubt that, especially in an EU context, linguistic reasoning is difficult. It is difficult because of the open texture of words, and because of the multitude of different legal sources of equal validity that are expressed in different words, be that multilingual legislation, or binding jurisprudence from a national or European Court. Linguistic interpretation is not easy. Purposive interpretation may be more straightforward where the only goal is seen as environmental protection since the court can simply interpret a term or offence broadly in order to cover as much ground as possible. This difficulty should not deflect the courts from pursuing their proper judicial role, striking the right balance between independence and scrutiny, and respect of a supreme legislature or a superior legal system. To overcome the difficulty, or at least make it easier, a firm commitment to a new approach is needed. The approach must also be sensitive to the context within which it is expected to operate. That is necessary in order to interpret linguistically since the meaning of language is determined by that context. It has been argued here that the fivestep approach to interpretation discussed above achieves this balance. It builds in scope for interpretation in context, albeit that the context is used not as a guide to purpose as such, but as a background to the meaning of the terms used.

VI. Environmental/Criminal Law Let us turn, finally, to questions of the environmental/criminal law frontier. What impact would a shift in interpretive practice have upon the compromise being

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struck here? In this area, it is a matter of finding the right balance between the need to act in the face of scientific uncertainty, to prevent environmental damage before it occurs, and to ensure that the polluter is punished for their actions where possible, on the one hand, and on the other hand, to uphold the requirements of certainty in order to ensure that the terms of an offence are knowable in advance, maximising the contribution of law to autonomy in this sense. Furthermore, in this context, it is also important to ensure that the sanctions imposed are tailored to allow for the most serious offences to be met with the most serious response. It should not be that the most obvious crimes, ie the most clearly within the scope of the relevant offence, that should be most clearly punished. A lack of clarity in the law prevents the appropriate tailoring of sentencing and prosecuting practice. As things stand, highly complex or scientifically ambiguous acts, which may nevertheless be very serious in terms of their outcomes, may be seen as too risky in prosecutorial terms. The lack of certainty in the law is therefore not only an affront to autonomy of the individual, it is also problematic from the perspective of the regulator. Allowing for clear and predictable interpretation also helps to ensure that the appropriate degree of punishment is imposed and prevents an unwillingness to prosecute for fear that the pre-requisites of the offence have not taken place. Adopting the new framework for interpretation discussed in this book will help better to achieve a proper compromise in this area. As has already been noted, the ECJ, the English courts and the European Court of Human Rights have all expressed concerns that the lack of certainty in environmental law is risking due process. The balance between enforcement of the law, and the need to respect certainty, is currently struck in the wrong place. Our desire to prevent environmental damage must be better balanced against the need to ensure that the criminal law is targeting the right offenders, and that the offender could know in advance that he was committing an offence. In order to ensure this, two things are needed. Firstly, our understanding of what is harmful must be clearly imbued into our interpretation of the relevant offence in the shape of the harm actually delineated by the words used in the legislation. Secondly, we must also ensure that both legislation and guidance contain a clear indication of the shape of the relevant offence, and that the courts uphold that need for certainty. The particular importance of certainty to criminal law warrants the greatest amount of attention being directed to this area of environmental law, but that does not mean that the general approach to interpretation which prioritises certainty cannot be useful elsewhere. There is no reason why the courts cannot use the approach outlined here to ensure certainty in various environmental contexts. This can be seen in particular if the habitats’ protection provisions and the contaminated land provisions are considered. Both regimes are supported by criminal offences, but both also involve regulation which takes place without the need to invoke the criminal law. Thus, certainty in the definition of contamination will naturally impact upon criminal law, but its impacts will be felt also in administrative law. The strongest justification for a change comes from the criminal law

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context, but the impacts can be much wider than this. By using criminal law principles in this mixed context, where the administrative, regulatory and criminal are intertwined, the best outcomes can be reached.

VII. Conclusion The approach to interpretation outlined here is reassuringly familiar to the common lawyer. In this common law system, this approach promotes certainty and has been developed over time as a means to strike the balance between effectiveness, compliance, and predictability. What is new, and unfamiliar, is the contextual understanding of this approach, and the focus on environmental harm. Common law principles have been adapted to ensure that they can stand up to the peculiar challenges that environmental law presents. This approach will help to solve the crisis of interpretation currently suffered in relation to environmental law. This book has discussed six key issues. Firstly, it demonstrated where environmental criminal law sits within the legal system, and what issues emerge from this siting. It was shown that there are six central tensions in such regulation, tensions which any approach to interpretation must be able to account for. These were: (1) property/environmental law relationship; (2) the relationship between human rights and the environment; (3) questions of risk; (4) the jurisdictional overlap in environmental regulation; (5) the role of the judiciary and the method of legal reasoning; and (6) the criminal law context. Secondly, it was shown that legal certainty, both from a theoretical and a case law perspective can be defined as involving three central features: transparency, accessibility, and formal coherence. The legal system is therefore justified in seeking such features in its law. The problem of uncertainty in environmental law interpretation needs to be tackled by focusing solely on the problem of certainty, rather than seeing this issue as of instrumental concern only. It must be tackled because of the perception of immaturity that plagues environmental law; because of the current perception amongst the wider legal and business communities; and because as things stand environmental law is unable to operate in a robust fashion in the face of scientific and administrative complexity. Most crucially, however, it needs to be tackled because of the criminal law context in which these regimes are operating. Thus, the book has shown that certainty in environmental law ought to pursued as a goal in itself. Thirdly, it demonstrated that in the current approach to interpretation of the waste, contaminated land, and nature conservation regimes at the domestic judicial level there is a severe lack of certainty and coherence. The case law, as it stands, shows a tendency for the courts to approach questions of interpretation on a caseby-case basis, without clear guidance on how future cases ought to be decided. The courts are abdicating their responsibility to provide certainty. In doing so they are

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failing to articulate clear reasons for their decisions. This produces outcomes that are difficult to reconcile. Fourthly, the causes for this uncertainty were examined. It was established that the immediate cause is the effectiveness-driven approach to interpretation taken at the national level. This approach, although sometimes taken unwillingly, dominates the environmental law jurisprudence. The deeper cause, the reason why the courts take this purposive approach, lies in the regulatory culture in an environmental law context. This is established primarily by the approach of the ECJ. Even where a particular term or regulation is not European in origin, the pressure from the ECJ and the influence that it has had on the process of interpretation mean that even here a purposive approach is being taken. This regulatory culture is present too in the approach of the administrative bodies applying and providing guidance in relation to these regimes, and in the approach of environmental law scholars. Thus the scholarship too does not ensure that interpretation takes place in a certain fashion, where certainty is valued for its own sake. Fifthly, the book developed a new approach to interpretation as a response to this uncertainty. This approach takes common law principles of interpretation and adapts them to the environmental context. It advocated a five-stage approach to interpretation. The first stage is a strict linguistic approach. This will allow the ruling out of certain meanings to be given to a regulatory provision. If there is a remaining ambiguity, as is likely, the next stage will be to assess the particular harm tackled by this specific provision. In doing so, the court will rely on an autonomous legal principle of environmental harm. This highly contextualised principle of interpretation requires the court to consider the community of landowners and the impact of a particular action on that community. The case law discussing nuisance, as well as other issues such as risk assessment, precaution and uncertainty, can then be filtered into this definition of harm to ensure a principled, and consistent approach. This approach can be homogenised across these different, but linked regimes. The third stage is to consider the rules as part of an overall framework of regulation. At the fourth stage the court will be permitted to consider purpose in the shape of the pre-legislative material and explanatory notes. Here again purpose is defined in advance and capable of providing a basis for reasoning in future cases. It is only if ambiguity still remains that the general goal of environmental protection can be considered as a last resort. Finally, the book demonstrated that despite the jurisprudence of the ECJ and the existing statutory guidance, it is possible as a matter of precedent to adopt this solution. The barriers to change can be overcome and the approach can work hand in hand with one which relies on the environmental principles as well by integrating such principles into the second stage of the process. If this happens, it has also been shown that this solution will then actually provide assistance in practice. Notions such as abandonment of responsibility, continual or repeated trivial interferences, and seriousness of damage can all be integrated into the definition of the principle of environmental harm to ensure a consistent, principled

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approach to interpreting the key trigger terms in relation to the criminal offences arising out of these regimes. The lessons learned from other areas of law, and from the development of clear principles of legal reasoning and interpretation developed over time can be very useful to environmental scholars and regulators to provide the certainty that is craved. In an attempt to ensure effective environmental protection, we must not overlook what makes law good as law and we must value certainty for its own sake.

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INDEX

Aarhus Convention, 25 abandonment of responsibility, 102, 190–91 contaminated land, 86–87 nature conservation, 91 waste, 80–81 academic approach: contaminated land, 130–34 nature conservation, 134–38 waste, 124–130 accessibility of rules: legal certainty, 45, 206 ECJ, 48–49 national courts, 49–51 administrative approach, 110–11, 120 contaminated land, 115–17 nature conservation, 117–20 waste, 111–15 agencies, see regulatory agencies autonomy, 37, 205 legal certainty and, 42 burden of proof, 37 business: dissatisfaction with environmental law, 6, 51–52, 54–56, 206 regulatory burden on, 111–12 by-products, 185–86, 193 need for guidance, 112 production residues distinguished, 62 certainty, see legal certainty civil law approach, 32 common law approach, 2 advantages of a common law approach, 139–41, 170–71 criminal law, 35–36 nature of sanctions, 35 explanatory notes, 168–70 harmfulness and, 140 language and, 139, 141–44 legal reasoning, 32 linguistic analysis, 141–44 ‘mischief ’ and, 144–67 pre-legislative materials, 168–70 principle of environmental harm, 140 relationship with environmental principles, 172–73 see also harm; mischief

Conservation of Habitats and Species Regulations 2010 (CHSR), 12, 67–68, 89, 118–19, 169 consistency, 10, 16, 75, 95, 114–15, 121, 140–41, 143–44, 168, 181–86, 191–93 contaminated land, 2, 15 academic approach, 130–34 allocation of liability, 195 ‘appropriate person’ and, 65–66 ‘causing’, 97 controls: central government, 63–64 local government, 64, 116 decision-making: abandonment of responsibility for providing certainty, 86–87 case-by-case nature, 85–86 reconciling outcomes, 88 reluctance to articulate reasons, 86, 87–88 duty to inspect land, 64 enforcing agencies, 65–66 harm, 64–65 ‘knowingly permitted’, 97, 99 mischief, 195 new interpretation, 194–96, 206–07 polluter pays principle, 98, 105, 116, 195 precautionary principle, 116, 194–95 proportionality principle, 116 purposive interpretation, 96–99 remediation notices, 65–67 risk assessment, 194 uncertainty, 85–88, 96–99, 115–17, 130–34 controlled waste, 60–63, 75, 81, 126, 193 see also discard; waste Countryside and Rights of Way Act 2000, 67, 102 criminal law, 6, 10–11, 18–19, 36–37, 204–06 balancing, 38 burden of proof, 37 certainty, 18 common law and, 35–36 complexity of interplay, 36 environmental harm and, 151 environmental law and, 204–06 legal reasoning and, 6 nature of sanctions, 35 common law, 35–36 regulatory intervention, 34–35 waste and, 130

232 criminal sanctions, 1, 35, 51, 73 ensuring compliance, 68 see also sanctions decision-making: contaminated land: abandonment of responsibility for providing certainty, 86–87 case-by-case nature, 85–86 reconciling outcomes, 88 reluctance to articulate reasons, 86, 87–88 nature conservation, 89–90 abandonment of responsibility for providing certainty, 91 case-by-case nature, 90 reconciling outcomes, 92 reluctance to articulate reasons, 91–92 waste control: abandonment of responsibility for providing certainty, 80–81 case-by-case nature, 76–80 discretion, 80–81 reconciling outcomes, 83–85 reluctance to articulate reasons, 81–83 Department for Environment, Food and Rural Affairs (DEFRA), 51, 61–62, 113 contaminated land: statutory guidance, 63–64 guidance on waste, 113–14 nature conservation: guidance, 117–20 discard, 77, 79–80, 86, 93–94, 96 controlled waste, 75 definition, 12, 82–83 ECJ, 104 deposit distinguished, 94, 113, 126, 130, 190 new interpretation, 190–93 offences, 61–62 end-of-waste status, see by-products Environment Agency, 61–62, 73, 80–81, 114–15 contaminated land and, 65 Environmental Damage (Prevention and Remediation) Regulations 2009 (EDR), 12, 67, 68, 72–73, 89 guidance, 119 environmental harm, 151–52 criminal law and, 151 damage distinguished, 147–48 risk and, 148–49 harmfulness, 145–49 mischief, 144–67 nuisance and, 153–61 property and land: damage, 149 land community, 149–50 rights-holders, 149–50 scope, 152–53

Index environmental law: administrative complexity and, 57–58 certainty and, 51–59 concept, 13–14 criminal law and, 204–06 dissatisfaction within the business community, 51, 54–56 definition of waste, 55 incoherence, 54 fragmented nature, 184 human rights and, 201 immaturity, 51, 52–54 incoherence, 53 interpretation, 52, 58–59 waste, 55–56 land use regulation, 55–56 property and, 200 relationship with science, 51, 56–57 value-neutral concept, 14–15 Environmental Liability Directive 2004 (ELD), 12, 75, 167, 178, 187 contaminated land, 67 polluter pays principle, 105, 119–20 guidance, 119 Environmental Permitting (England and Wales) Regulations 2010, 11–12, 63 environmental principles: establishing coherence, 173–74 legal barriers: ECJ, 177–89 statutory guidance, 189 precautionary principle, 172–73 relationship with common law approach, 172–73 reliance on principles, 174–75, 176–77 role, 173–74, 176 Environmental Protection Act 1990 (EPA), 11–12 contaminated land and, 63, 65–66 waste control, 60–61, 114 EU law, 203 designation of nature sites, 70–74 doctrine of supremacy, 26, 30–32, 178–79 legal certainty and, 182–83 European Convention on Human Rights (ECHR), 24 binding nature, 25–26 EU accession, 26 nature conservation and, 89 European Court of Human Rights (ECtHR), 25, 205 European Court of Justice (ECJ), 26 causes of uncertainty: approach of the court, 104–10 precautionary principle, 104–05, 108–09 preventive principle, 104–05

Index legal barriers to environmental principles, 186–89 constitutional set-up of the EU, 181–83 excessive reliance on principles, 184 fragmented nature of environmental law, 184 linguistic reasons, 177–81 narrowness of purposive approach, 184–86, 188–89 risk regulation, 183–84 scientific uncertainty, 183 legal certainty and, 47–48 ‘plan’ and ‘project’, 106–07 polluter pays principle, 105–06 purposive approach, 104–09 reasons for, 109–10 teleological approach, 109–10 ‘waste’, 62 formal legal certainty, 6, 41–45 guidance, see administrative approach Habitats Directive 1992 (HD), 68, 106, 108–09, 119, 186–87 harmfulness, 29–30, 64, 107–08, 167 assessment of, 30 common law approach, 140 damage, 147–48, 194–95 harm distinguished, 147–48 land use, 145–47, 155 mischief, 144–47, 160, 163 risk and, 148–49, 160 see also environmental harm; mischief Human Rights Act 1998, 25, 26, 50 human rights and, 24–25, 201 balancing, 26–27 competing human rights, 26–27 defence, as a, 25 due process, 27 fair trial, 27 impact on liberty, 24 interaction with property rights, 25–26 incoherence, 5, 10, 17 environmental principles, 173 immaturity of environmental law, 53 see also legal certainty interpretation, 3, 8, 199–200 certainty, 1 common law approach, 2 language, 2, 7, 32, 199 legal certainty, 50–51 legal reasoning and, 33, 203–04 role of experts, 33–34 role of the judiciary, 33

233 new approach, 139–71, 207 contaminated land, 194–96, 206–07 discard, 190–93 nature conservation, 196–97, 206–07 waste, 190–93, 206–07 ‘plan’ and ‘project’, 106–07 risk, 29 uncertainty, 75–102

jurisdiction, 202–03 doctrine of supremacy, 26, 30–32, 178–79 EU law, 30–31 legal reasoning, 32 mutual deference and cooperation, 31–32, 34 land use, 1–2 harmfulness and controls, 145–47, 155 harm to neighbours, 153–55 nuisance and, 161–62 regulation, 164, 166–67 language, 170–71, 199 cause of uncertainty, 7, 32, 88, 94, 98, 100 waste, 130 common law approach and, 139, 141–44, 166 ECJ jurisprudence, 179–81 legal barriers to environmental principles, 177–81 legal certainty, 41 transparency, 44–46 statutes, 2, 142–43, 168 law enforcers, 131 Environment Agency, 61–62, 65, 73, 80–81, 114–15 role, 4–5 legal barriers, 8 ECJ and environmental principles: constitutional set-up of the EU, 181–83 excessive reliance on principles, 184 fragmented nature of environmental law, 184 linguistic reasons, 177–81 narrowness of purposive approach, 184–86, 188–89 risk regulation, 183–84 scientific uncertainty, 183 language, 177–81 statutory guidance, 189 legal certainty, 1, 3–6, 10–11, 40, 206 absolute certainty, 45 accessibility of rules, 45, 206 ECJ, 48–49 national courts, 49–51 autonomy and, 42 balance and, 45 coherence, 42, 44, 206 compliance with traditional legal values, 4 criminal law and, 18

234

Index

defined, 40–41 formal legal certainty, 41–42, 43 moral certainty, 41–42 perfect certainty, 41 predictability and, 41–46 substantive legal certainty, 41–42, 43 environmental law and, 51–59 interpretation and, 50–51, 58–59 land use regulation, 55–56 levels of, 41–46 increasing, 197–98 practical certainty, 45–46 predictability and, 41–46 context, 46–47 property rights, 22–23 regulation, 44 risk and, 29 transparency, 42, 45, 206 ECJ, 47–48 language and, 44–45 national courts, 49–51 legal reasoning, 2, 6 interpretation, 33–34 new interpretation, 203–04 managing risk, 27–28, 201–02 conflicting understanding of, 28–29 harmfulness, 148–49 assessment of, 30 interpretation, 29 practicality of regulation, 28 scientific uncertainty, 29 mischief, 7, 140, 144–64, 166–67, 195 administrative discretion and, 165–66 approach to lack of certainty, 164–65 scientific uncertainty and, 165 see also environmental harm moral certainty, 36, 42–43 national courts, 1–2, 104, 109 human rights and, 25 jurisdictional conflicts, 31–32, 85–86, 178–79, 187–88, 202–03 legal certainty and, 47, 49–51 national nature reserves, 67 Natural England, 68–70, 75, 117–19 deference to judgments of, 91 enforcement policy, 73–74 nature conservation, 15 academic approach, 134–38 controls, 67–68 decision-making, 89–90 abandonment of responsibility for providing certainty, 91 case-by-case nature, 90 reconciling outcomes, 92 reluctance to articulate reasons, 91–92

designation, 67–69 EU law, 70–74 national law, 69–70 environmental damage, 72 negligence, 72 strict liability, 72 EU law designation: damage to protected species or habitats, 72 damage, 72–73 environmental damage, 72 procedure, 71–72 special nature conservation orders, 71–72 types of site, 70–71 management schemes, 69 national law designation: compulsory purchase, 70 consequences for owners and occupiers, 69 defining SSSIs, 69 enforcement of provisions, 70 failure to comply, 70 management schemes, 69 new interpretation, 196–97, 206–07 offences, 73–74 ‘plan’ and ‘project’, 106 purposive interpretation, 99–102 sanctions, 68 uncertainty, 89–92, 99–102, 117–20, 134–38 see also Natural England negotiation, 1, 49, 118 negligence, 145 environmental damage, 72 nuisance and, 158 ‘new governance’, 4, 16 nuisance, 153–55 damage as harm, 157 continuity/repetition, 158–59, 207–08 seriousness, 157–58, 159, 207–08 interaction between neighbouring landowners, 156–57 land and, 155–57 land use and, 161–62 legal reasoning, 163 negligence and, 158 regulation and, 161–64 risk assessment, 159–61 offences: carrying out activity on designated land without consent, 12 contaminated land, 63–67 depositing waste without a licence, 11 nature conservation, 67–74 non-compliance with remediation notices, 12 SACs, 12 SPAs, 12

Index SSSIs, 12 waste and, 61–63 case law, 62–63 see also criminal law; criminal sanctions; sanctions perfect certainty, 41 polluter pays principle, 9, 87, 96–97, 98, 105–06, 116, 119, 133, 172, 175–76, 195 precautionary principle, 9, 28, 137, 172–73 contaminated land, 116, 194–95 damage and, 194–95 ECJ and, 104–07 harm and, 159–61, 164–65, 194, 196 interpretation of statutory language, 202 nature conservation, 101, 196 waste and, 94 predictability, 1–4, 41–46 see also legal certainty property rights and, 19–21, 200 balancing, 22–23 certainty, 22–23 competing property rights, 22–24 impact on liberty, 21 interaction with human rights, 25–26 mutual accommodation, 22–23 restrictions, 21 purposive approach, 7, 42, 55 causing uncertainty, 75 contaminated land, 96–99 ECJ and, 71, 86, 94, 104–09 reasons for, 109–10 narrowness, 188–89 legal barriers to environmental principles, 184–86 nature conservation, 99–102 waste, 93–96 Ramsar sites, 67 regulation, 1, 7, 8 CHSR 2010, 12, 67–68, 89, 118–19, 169 EDR 2009, 12, 67, 68, 72–73, 89, 119 ELD 2004, 12, 67, 75, 167, 178, 187 Environmental Permitting (England and Wales) Regulations 2010, 11–12, 63 EPA 1990, 11–12, 60–61, 63, 65–66, 114 EU law, 26, 30–32, 70–74, 178–79, 182–83, 203 HD 1992, 68, 106, 108–09, 119, 186–87 nuisance and, 161–64 Waste (England and Wales) Regulations 2011, 60–61 WBD 2009, 68, 119, 187 WCA 1981, 12, 67 WFD 2008, 60–61, 114, 104–05, 124–30, 185–87 see also European Court of Justice; national courts; regulatory agencies

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regulatory agencies, 1, 41, 65–67, 103, 111, 122 courts deferring to, 121 see also Environment Agency remediation notices, 12, 65–66, 75 ‘appropriate person’, 65, 66 contaminated land, 65–67 criminal liability and, 195 failure to comply, 12, 66, 70, 73, 143 sanctions, 66–67 pre-requisite for liability, as a, 66–67 residues: by-products distinguished, 62 risk regulation: legal barriers to environmental principles, 183–84 sanctions, 1, 35, 51, 73 ensuring compliance, 68 unauthorised or harmful deposit of waste, 61 science and, 6 integration with environmental regulation, 56–57 legal barriers to environmental principles, 183 relationship with environmental law, 51, 56–57 uncertainty and managing risk, 29, 112–13, 132–34 legal barriers to environmental principles, 183 sites of special scientific interest (SSSI), 12, 67, 186–87 guidance, 118–19 Smarter Environmental Regulation Review, 5–6 special areas of conservation (SAC), 12, 67, 186–87 special protection areas (SPA), 12, 67, 186–87 strict liability, 35–37, 145 environmental damage, 72 substantive legal certainty, 41–42, 43 teleological approach, 2, 5, 8, 129–30 contaminated land, 96–99 ECJ, 86, 107, 109–10, 125–26 meta-teleological approach, 179–89 nature conservation, 99–102 waste, 93–96 transparency, 10 legal certainty, 42, 45, 206 ECJ, 47–48 language and, 44–45 national courts, 49–51 UK Environmental Law Association (UKELA), 5–6, 51 role of environmental principles, 177 The State of UK Environmental Law, 9–10, 54–56