Environmental amendments to European Union (Withdrawal) Act 2018, House of Commons Environmental Audit Committee report on mandatory climate risk reporting, the future of environmental law
Welcome to our environmental law news podcast produced in partnership with Christopher Badger, Barrister, 6 Pump Court.
In this podcast, we consider some of the key legal developments in environmental law during June 2018, including:
The environmental amendments made to the European Union (Withdrawal) Act 2018 at bill stage during ping pong
The House of Commons Environmental Audit Committee report on mandatory climate risk reporting
The future of environmental law, as discussed at the United Kingdom Environmental Law Association annual conference over the 22 -23 June, 2018
To listen to the podcast, press play below or to download and perhaps listen on the go, click here.
Environmental amendments to European Union (Withdrawal) Act 2018 – listen from 0.28 secs
Christopher takes us through some of the critical environmental amendments that were made to the European Union (Withdrawal) Act 2018, prior to it receiving Royal Asset on 26 June 2018. These are the amendments dealing with how environmental principles and standards will be protected after the UK leaves the European Union.
House of Commons Environmental Audit Committee report on mandatory climate risk reporting – listen from 4.08 secs
On 4 June 2018, the House of Commons Environmental Audit Committee published its Seventh Report of Session 2017-19, ‘Greening Finance: embedding sustainability in financial decision making’.
Christopher discusses the report’s key proposals, which aim to engage the UK investment chain with the impact that climate change and other environmental problems pose to the economy.
The future of environmental law – listen from 7.10 mins
On the 22-23 June 2018, the United Kingdom Environmental Law Association held its annual conference at the University of Kent, Canterbury, under the title ‘Past Reflections and Future Horizons: Environmental law in a post-Brexit World’.
A number of significant issues were discussed that are likely to heavily influence the development of environmental law over the coming years and Christopher takes a moment in this podcast to consider these.
In ICI v Merit Merrell[2018] EWHC 1577 (TCC), Fraser J in the Technology and Construction Court warned against the use of biased expert evidence and reminded experts and legal advisers of important points to bear in mind in this regard:
There are some jurisdictions where partisan expert evidence is the norm. For the avoidance of any doubt, this jurisdiction is not one of them.
The judgment
Following an earlier judgment determining that an employer had been in repudiatory breach of contract, the court considered issues around quantum. In doing so, the court found that it was not bound by the Project Manager’s assessments of compensation events (under the NEC3 contract), that the burden of proof was on the employer to show that the contractor had been overpaid, and that the contractor was entitled to recover losses caused by the negative impact which the breach had had on its financial position.
In parts of the (lengthy) judgment, the court was critical of some of the expert evidence. For example, it noted that one of the experts had:
valued work at actual cost rather than using the agreed rates, despite there being no contractual basis for this
opined on causation, which was a matter for the court
not taken account of specific findings made in the liability judgment
In fact, Fraser J was generally concerned by the preponderance of partisan experts called by one of the parties, and stressed the need for experts and instructing legal advisers to take careful note of the principles governing expert evidence.
Points to bear in mind
In addition to reminding experts to read CPR PD 35, the court noted six points about an expert’s duties which should be borne in mind (para 236):
1. Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number.
2. Where there is an issue, or are issues, of fact which are relevant to the opinion of an independent expert on any particular matter upon which they will be giving their opinion, it is not the place of an independent expert to identify which version of the facts they prefer. That is a matter for the court.
3. Experts should not take a partisan stance on interlocutory applications to the court by a particular party (almost invariably the party who has instructed them). This is not to say that a party cannot apply for disclosure of documents which its expert has said he or she requires. However, the CPR provides a comprehensive code and it may be that disclosure is not ordered for reasons of disproportionality. However, if documents are considered to be necessary, and they are not available (for whatever reason), then an opinion in a report can be qualified to that extent.
4. The process of experts meeting under CPR Part 35.12, discussing the case and producing an agreement (where possible) is an important one. It is meant to be a constructive and co-operative process. It is governed by the CPR, which means that the Overriding Objective should be considered to apply. This requires the parties (and their experts) to save expense and deal with the case in a proportionate way.
5. Where late material emerges close to a trial, and if any expert considers that is going to lead to further analysis, consideration or testing, notice of this should be given to that expert’s opposite number as soon as possible. Save in exceptional circumstances where it is unavoidable, no expert should produce a further report actually during a trial that takes the opposing party completely by surprise.
6. No expert should allow the necessary adherence to the principles in The Ikarian Reefer* to be loosened.
*The Ikarian Reefer is a 1993 decision which summarises the principles concerning expert evidence, including that expert evidence should be independent and that an expert should never take on the role of an advocate.
David Savage, partner and head of the construction and infrastructure team at Charles Russell Speechlys, examines the final report of the Independent Review of Building Regulations and Fire Safety. Controversially, while recommending a complete overhaul of the current building system for residential tower blocks, the report did not recommend a ban on flammable cladding.
First published on LexisPSL Construction. Click here for a free trial.
What is the purpose of the report?
The report was commissioned by the government with the remit to conduct an independent, in-depth review into building regulations and fire safety, in the wake of the Grenfell fire tragedy in which 72 people died in the greatest loss of life in a fire in a century.
The review focusses on regulations which currently apply to high-rise buildings, and identifies key areas for change. The report’s interim findings were reported in December 2017 (see News Analysis: Interim report on building regulations and fire safety published) and the final report was published on 17 May 2018.
What key issues are identified in the report?
Dame Judith Hackitt’s report identifies ignorance, indifference, lack of clarity on roles and responsibilities, inadequate regulatory oversight, and inadequate enforcement tools as the key culprits for the system’s failures.
The report states that the bar for compliance with building safety requirements is too low, with weak processes, poor record-keeping and change control in many cases. It notes that levels of competence are inconsistent, and that current ‘Approved Documents’ can be ambiguous and inconsistent. Finally, it also identifies the product testing, labelling and marketing regimes as a key issue, with current practices being insufficient, and finds that the voices of residents often go unheard, even where safety issues are concerned.
Dame Hackitt recommends moving away from dictating requirements to responsible duty holders. Her report looks to place those responsible in a position to take ownership and make intelligent decisions about the layers of protection required to keep high-rise residential tower blocks safe.
What key recommendations are made?
The report recommends a complete overhaul of the current system for residential tower blocks. Dame Hackitt recommends that government set up a ‘joint competent authority’ (JCA), comprising local authority building standards, fire rescue authorities and the Health and Safety Executive. A system of mandatory occurrence reporting to the JCA should then be put in place. Non-reporting should be regarded as non-compliance and sanctioned appropriately.
The new framework would include a new, independent body (essentially, a rebranded local authority Building Control) which would approve building safety at design stage and at regular intervals thereafter, and which would have the power to levy hefty fines, issue ‘stop’ notices and even impose prison sentences for non-compliance. Limitation periods for prosecution would be extended. The report also recommends that any private building inspectors used should be independent of builders.
The new regime that Dame Hackitt proposes would only apply to buildings of ten storeys or more. This means current requirements for buildings between six and nine storeys would remain in place, with the changes proposed being relevant only for buildings of ten storeys and above. New buildings should be identified by the local planning authority (LPA) and notified to the regulator, while existing buildings in scope should be identified through other means.
The report also recommends that the new framework treat buildings as a single entity and proposes the publication of a new, ‘over-arching approved document’ which would describe the system as a whole.
Other key recommendations made include:
that the government identifies the key roles that will be most important in initiating, overseeing or influencing activity throughout the procurement, design and construction phase to ensure increased accountability, and
where a planning application is made for a high-risk building, the LPA should be required by law to undertake a consultation with the JCA. The same process should apply where planning is sought for another building in the near vicinity (where such building might impact fire service access)
Does the report go far enough?
The review provides a powerful critique of the current regulatory framework and practices within the English construction industry. It identifies key issues with the current system and industry culture, and calls for systematic change and a new regulatory body.
Yet, in many instances, Dame Hackitt has stopped just short of expressly condemning practices which many consider are at the root of the industry’s problems. Notably, the report fails to specifically condemn practices or call for urgent action in respect of combustible materials, desktop studies and materials testing, which many consider essential measures to improving safety.
Despite widespread calls for a ban on combustible materials in cladding systems, the report does not call for this. Dame Hackitt justifies this by stating that a ‘totally prescriptive system’ would create over-reliance on the system and discourage ownership and accountability. She did however indicate that, should the government proceed with a complete ban, she would support this.
Her failure to come down firmly on this matter, alongside other issues, has tainted the report’s reception. The government has now responded by announcing a consultation on the subject of combustibles (see: LNB News 17/05/2018 84), which many find encouraging, but which raises the question—why not recommend a complete ban in the first place? When questioned about exactly this point, Dame Hackitt explained her position as follows:
If people feel that I have not gone far enough, and that for this system to work in the future requires, in addition, that there is further clarity or indeed banning of some of the materials that are being used, I don’t have a problem with that.
What I would be very disappointed about, however, is if people think that simply banning cladding is going to fix this problem—it won’t. It is a broken system and banning cladding on its own will not fix it. If we change the system and implement the new regulatory framework, and take further steps on what cladding is or is not allowed, I don’t have a problem with that at all.
The report does not call for additional oversight to the large-scale cladding testing regime. While it calls for annual reports on tests carried out, it does not suggest that these should be made public. It therefore stops short of a ban which would prevent ‘desktop studies’ from being carried out, but recommends instead that these studies should only be carried out by organisations who are accredited to do so.
The report also stops short of recommending a ban on product substitution, recommending instead a ‘significantly reduced scope for substitution of any products used in a system without further full testing’.
Finally, despite criticism of the current system in place, Dame Hackitt also does not recommend changes to the practice of carrying out ‘category one’ fire risk assessments. Her view is that professional bodies, not government, should decide what a ‘competent person’ is for the purposes of these assessments—although she stops short of recommending compulsory certification.
What do you expect will happen next?
Interested parties seem encouraged by the announcement of the combustibles consultation, though many are frustrated that the report has not included outright condemnation in respect of many of the practices listed above. There are concerns that without the implementation of a ban, further decisive action will fail to follow and the report will be relegated to a pile of previous recommendations without ever effecting serious change in the industry.
It has also been suggested that some of the report’s proposals underestimate the complexity of the task ahead, which would affect the likelihood of their implementation, and Dame Hackitt has provided no clear guidance on how long it would take to bring in this new system.
However, within 24 hours of the report’s publication, James Brokenshire MP, Secretary of State for Housing, Communities and Local Government:
committed to bringing forward legislation that delivers ‘meaningful and lasting change, and ensures that residents have a much stronger voice in an improved system of fire safety’
made clear that his Department was consulting on significantly restricting or banning the use of ‘desktop studies’ to assess cladding systems, and confirmed his view that inappropriate use of desktop studies was unacceptable
indicated that he would not hesitate to ban the use of desktop studies if his Department’s consultation—which closed on 25 May 2018—did not demonstrate that they could be used safely
confirmed he was working with industry to clarify building regulations fire safety guidance, and would be publishing proposals in this regards for consultation in July 2018
If you are a Client and we have made a contract with you by electronic means you may be entitled to use an EU online dispute resolution service to assist with any contractual dispute you may have with us.
This service can be found at ec.europa/consumers/odr
Our email address is glg@hardwicklegal.com.
Hardwick Legal Solicitors website uses cookies so that we can provide you with the best user experience possible. Cookie information is stored in your browser and performs functions such as recognising you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful.
Strictly Necessary Cookies
Strictly Necessary Cookie should be enabled at all times so that we can save your preferences for cookie settings.
If you disable this cookie, we will not be able to save your preferences. This means that every time you visit this website you will need to enable or disable cookies again.
