Monthly Archives: February 2018

 

Government Plan to Tackle Air Quality Unlawful

 

Environmental lawyers ClientEarth have successfully challenged the government’s plans to tackle air quality for the third time.

The two previous challenges were also successfully challenged.

 A Brief History 

The first Air Quality Plan produced in 2011 was quashed by order of the Supreme Court in 2015. The Government was made the subject of a mandatory order requiring the Secretary of State to prepare new air quality plans in accordance with a defined timetable.

The second AQP produced in purported compliance with the order of the Supreme Court was published on 17th December 2015.

In a judgment dated 2nd November 2016, Justice Garnham concluded that the 2015 Air Quality Plan failed to comply with Article 23(1) of the Air Quality Directive 2008. On 22nd November 2016, it was ordered that the Secretary of State publish a draft modified Air Quality Plan by 4 pm on 24th April 2017 and a final Air Quality Plan by 31st July 2017.

In November 2017, the government requested an extension of time for the publishing of the draft plan due to the general election and purdah. Justice Garnham concluded that the draft plan must be published the day after the local elections and that date for the publication of the final plan 31st July 2017, would be unchanged. In accordance with the amended order of the Court, a draft air quality plan and supporting technical report were published on 5th May 2017. Those documents were then put out to consultation. In June 2017 ClientEarth sought to challenge the details of this consultation but this was refused.

On 26th July 2017 (“DEFRA”) the “UK plan for tackling roadside nitrogen dioxide concentrations” was published. This was the third attempt by the UK Government to provide an Air Quality Plan (“AQP”) that met its obligations in law.

On 27th July 2017, the Government published a Direction to 23 local authorities under s85(5) of the Environment Act 1995 to undertake a feasibility study to identify the option which will deliver compliance with legal limits for nitrogen dioxide in the area for which the authority is responsible, in the shortest possible time. These were:

  • Basildon Borough Council
  • Bath and North East Somerset Council
  • Bolton Metropolitan Borough Council
  • Bristol City Council
  • Bury Metropolitan Borough Council
  • Coventry City Council
  • Fareham Borough Council
  • Gateshead Metropolitan Borough Council
  • Guildford Borough Council
  • Manchester City Council
  • Middlesbrough Borough Council
  • New Forest District Council
  • Newcastle City Council
  • North Tyneside Council
  • Rochford District Council
  • Rotherham Metropolitan Borough Council
  • Rushmoor Borough Council
  • Salford City Council
  • Sheffield City Council
  • Stockport Metropolitan Borough Council
  • Surrey Heath Borough Council
  • Tameside Metropolitan Borough Council
  • Trafford Metropolitan Borough Council

Environment Act 1995 Air Quality Directions were also published for Birmingham, Leeds, Nottingham, Derby and Southampton in relation to clean air zones.

The Third challenge to the Air Quality Plan

This third challenge was submitted in November 2017 with arguments being heard from both parties on the 25th January 2018.The high court decision was published yesterday 21st Feb 2018.

ClientEarth’s grounds for the challenge were:

  1. The latest plan backtracks on previous commitments to order 5 cities to introduce clean air zones by 2020.
  2. The plan does not require any action in 45 local authorities in England, despite them having illegal levels of air pollution.
  3. The plan does not require any action by Wales to bring down air pollution as quickly as possible.

The decision concludes that the government have failed to produce an adequate plan to tackle growing air pollution and have failed to require action from 45 local authorities with illegal levels of air pollution.

These 45 authorities are identified in the air quality plan as Local authorities with roads with concentrations of NO2 forecast above legal limits and assuming no additional measures. All figures are provided in µg/m3 and 40 µg/m3 is the statutory annual mean limit value for NO2, but are not required to conduct a feasibility study

These authorities are:

  • Portsmouth City Council
  • Wakefield Metropolitan District Council
  • Bournemouth Borough Council
  • Bradford City Council
  • Plymouth City Council
  • Solihull Metropolitan Borough Council
  • Wolverhampton City Council
  • Bolsover District Council
  • Leicester City Council
  • Liverpool City Council
  • Newcastle-under-Lyme Borough Council
  • Oldham Metropolitan Borough Council
  • Sandwell Metropolitan Borough Council
  • Stoke-on-Trent City Council
  • Walsall Metropolitan Borough Council
  • Poole Borough Council
  • Burnley Borough Council
  • Peterborough Council
  • Reading Borough Council
  • Sefton Metropolitan Borough Council
  • South Gloucestershire District Council
  • Basingstoke and Deane Borough Council
  • Blaby District Council
  • Calderdale Metropolitan Borough Council
  • Cheltenham Borough Council
  • Dudley Metropolitan Borough Council
  • Kirklees Metropolitan Council
  • South Tyneside Metropolitan Borough Council
  • Southend Borough Council
  • Ashfield District Council
  • Broxbourne Borough Council
  • Chelmsford Borough Council
  • Doncaster Metropolitan Borough Council
  • Havant Borough Council
  • North East Lincolnshire Council
  • Sunderland City Council
  • Warrington Borough Council
  • Broxtowe Borough Council
  • Luton Borough Council
  • Oxford City Council
  • South Ribble Borough Council
  • Knowsley Metropolitan Borough Council
  • Northampton Borough Council
  • Rochdale Metropolitan Borough Council
  • Dartford Borough Council

This inaction led to the conclusion that the government’s proposals are unlawful and “seriously flawed” in respect of those 45 areas, which were not expected to reduce pollution to within legal levels until 2021.

Justice Garnham ordered ministers to require local authorities to investigate and identify measures to tackle illegal levels of pollution in 33 towns and cities as soon as possible – as 12 of the 45 local authorities are projected to have legal levels by the end of 2018.

This decision means that if the government fails their duties to address air quality, matters can be taken directly to the courts without delay. The courts will have the powers to pass judgment on whether the government’s actions meet its obligations on air pollution under UK and EU law.

“It seems to me that the time has come for the Court to consider exercising a more flexible supervisory jurisdiction in this case than is commonplace. Such an application was made to me when the November 2016 judgment was handed down. I refused it on that occasion”

There was no ruling against the government for its decision to back-pedal on a previous commitment to legally ensure five cities implemented charging ‘Clean Air Zones’ – which charge the most polluting vehicles to enter the most polluted parts of a city. Ministers issued Directions to those five cities in December 2017 as above.

Air pollution is thought to cause and contribute to as many as 40,000 thousands of deaths a year in the UK already, especially among vulnerable people such as those with existing respiratory problems.

DEFRA commented that they had previously considered that it was sufficient to take a pragmatic, less formal approach to those areas with less severe air quality problems but have agreed that they will take a more formal approach in line with the court decision. They will continue to implement the £3.5 bn air quality plan.

If you have any questions about the topics that we cover on our blog, contact us today, we’d be happy to talk.

 

 

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The GDPR and planning applications

 

In 2015 a Council breached the Data Protection Act (DPA) when it published the information in planning application documents which it made publicly available online.

The Council was fined £150,000 by the Information Commissioner’s Office (ICO).

The ICO is an independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

When the ICO did an investigation, they found that on the 16th July 2015, the Council received a written statement in support of a householder’s planning application for proposed works in a green belt.

The statement contained sensitive personal data relating to a static traveller family who had been living on the site for many years. In particular, it referred to the family’s disability requirements, including mental health issues, the names of all the family members, their ages and the location of their home.

The Council published the statement in full on its online planning portal later that day.

The ICO investigation found that this was due to failings in data protection procedures and training. An inexperienced Council officer did not notice the personal information in the statement, and there was no procedure in place for a second person to check it before the personal data was inadvertently published online.

The information was only removed on the 4th September 2015 when the concerns came to light.

The General Data Protection Regulation (GDPR)

If the same data breach was to happen after the 25th May of this year, the Council could have faced a fine of £17,000,000!

There is a new data protection law coming into force and anyone who handles data about ‘people’ has to be compliant.

Currently, the maximum fine the ICO can issue is £0.5m. After this May, larger fines of up to £17m (€20m) or 4% of global turnover will be allowed, enabling the ICO to respond in a proportionate manner to the most serious data breaches.

The GDPR is based on a set of common-sense principles:

  • A “right to be forgotten”: When an individual no longer wants her/his data to be processed and provided that there are no legitimate grounds for retaining it, the data will be deleted. This is about protecting the privacy of individuals, not about erasing past events or restricting freedom of the press
  • Easier access to your data: Individuals will have more information on how their data is processed and this information should be available in a clear and understandable way. A right to data portability will make it easier for individuals to transmit personal data between service providers
  • The right to know when your data has been hacked: Companies and organisations must notify the national supervisory authority of data breaches which put individuals at risk and communicate to the data subject all high-risk breaches as soon as possible so that users can take appropriate measures
  • Data protection by design and by default:‘Data protection by design’ and ‘Data protection by default’ is now essential elements in EU data protection rules. Data protection safeguards will be built into products and services from the earliest stage of development, and privacy-friendly default settings will be the norm – for example on social networks or mobile apps
  • Stronger enforcement of the rules: Data protection authorities will be able to fine companies who do not comply with EU rules up to 4% of their global annual turnover or £17,000,000 – whichever is more

If you are an organization that handles data about people, you should note the following…
Identify where you or your company are storing data, for example:

  • Your website
  • Telesales – do you store names and numbers for your agents to call?
  • Direct mail – do you have completed order forms stored away with contact details?
  • Customer service departments – calls taken from potential customers and those recorded details
  • Personal contact with people – the exchange of business cards from a tradeshow or exhibition

Prepare yourself and your staff, make them well aware of the changes that are coming.

  • Make sure that they understand the principles of good data protection and that they don’t write down details of people on a piece of paper that could go astray, end up in the bin or taken home on computers or memory sticks where information could get stolen
  • Evaluate your environment and how you document personal data – where did it come from, who have you shared it with?
  • How will you audit the data? Review current policy notices and put a plan in place – procedures and timescales
  • Be compliant, review your practices and make sure that, to the best of your ability, you look after the data as if it were your own
  • Make sure your organisation’s privacy policy of how you handle data is compliant with the new rules and is up to date
  • Decide how you will be able to prove that your data is secured safely and how to seek consent moving forwards.

Do you need a Data Officer?
A data protection officer (DPO) is an enterprise security leadership role required by the General Data Protection Regulation (GDPR). Data protection officers are responsible for overseeing data protection strategy and implementation to ensure compliance with GDPR requirements. A DPO would be recommended for any organization that processes or stores large amounts of personal data, whether for employees, individuals outside the organization, or both. Seek advice as to whether your company should employ a DPO.

The GDPR is a very hot topic at the moment and we will be keeping you up to date with any developments.
Read more about the ICO and the GDPR  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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