Year: 2021

Earlier this month (November 2021), the Environment Act 2021 received Royal Assent, a mere 685 days after its first publication.

And whilst many have lamented that the Act does not go anywhere near as far as is required for the scale of the task to restore our planet to health, many charities and environmental groups are buoyed by the new legislation. RSPB believes that ‘the Environment Act… will help recover nature. England is now the first country ever to have a legal target to halt nature’s decline.’

One of the most impacting aspects of the Environment Act is the establishment of the Office for Environmental Protection (OEP), a new oversight and governance body for England and Northern Ireland. The OEP state, ‘Once empowered, we will be able to monitor and report on environmental law and advise the Government on legal and other environmental issues.’

The Environment Act is a lengthy document, running to 260 pages. In brief, it aims to deliver:

Long-term targets to improve air quality, biodiversity, water, waste reduction and resource efficiency.

Following last-minute amendments, new duties will also require the Government to publish a plan to reduce sewage discharges from storm overflows by September 2022 and report to Parliament on the progress towards implementing the plan. This was a controversial amendment, with the House of Lords having pushed for a far more impacting amendment addressing all sewage, not just from overflows, but which was defeated in the House of Commons and sparked a media storm.

A target on ambient PM2.5 concentrations.

This is the most harmful pollutant to human health – a fine particulate matter in the air.

A target to halt the decline of nature by 2030 by way of a new legally binding target on species abundance for 2030.

This is intended to help reverse the declines of iconic British species like the hedgehog, red squirrel and water vole.

Dr Richard Benwell, CEO of Wildlife and Countryside Link, said:

“Becoming the first country with a legal target to halt wildlife decline by 2030 is a world-leading innovation and testament to the huge public and parliamentary demand to improve our state of nature. Now there’s no time to lose for action. 2030 is an ecological heartbeat away, so the whole of Whitehall must work together on a scientifically sound plan to meet this ‘net-zero for nature’ so that England can lead the way ahead of next year’s global nature negotiations.”

Environmental improvement plans, including an interim target.

This gives the Secretary of State the power to set long-term, legally binding environmental targets of at least 15 years in duration, across the breadth of the natural environment. It will specifically require the Government to set at least one target each in four priority areas: air quality, biodiversity, water, and resource efficiency and waste reduction.

Five environmental principles embedded into domestic policymaking.

These are:

• The integration principle, states that policymakers should look for opportunities to embed environmental protection in other fields of policy that have impacts on the environment.
• The prevention principle, meaning that government policy should aim to prevent, reduce or mitigate harm.
• The rectification at source principle, meaning that if damage to the environment cannot be prevented, it should be tackled at its origin.
• The polluter pays principle, which is the principle that those who cause pollution or damage to the environment should be responsible for mitigation or compensation.
• The precautionary principle, states that where there are threats of serious or irreversible environmental damage, a lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

Natalie Barbosa, senior associate, Anthony Collins Solicitors

If we ever needed a reminder that climate justice is social justice, here it is in the form of research from Oxfam and the Institute for European Environmental Policy.

It provides the stark, but perhaps unsurprising news, that the richest 1% of people globally are responsible for an increasingly large proportion of global climate-changing emissions – predicted to reach 16% by 2030 and a staggering 30 times the per-person levels compatible with capping global warming to 1.5⁰C. The research suggests that, excluding the richest 10% of people, the remaining 90% are set to be within touching distance of the global totals for a pathway to 1.5⁰C (and the poorest 50% of people worldwide continue to be responsible for significantly less than their ‘fair share’ of emissions).  

It would be easy to despair in the face of such research, at least at a personal level – what is the point of my turning off the lights as I leave a room when the wealthiest 1% are off into space? But it demonstrates some key principles which need to guide us, at individual, corporate and sector levels when considering what action to take:

• While taking personal action to reduce our individual carbon and environmental footprint is entirely admirable and to be encouraged, we should not be distracted from the bigger picture.
• Tackling climate change means addressing social inequalities, and those inequalities need to be looked at through a climate lens: how can we reduce the impact of the wealthiest on the planet while improving the quality of life of the poorest? 
• Our focus must be on maximising the results from decarbonisation projects in each of the various sectors that have the biggest contribution to emissions – in the UK these are transport, energy supplies, businesses and homes. If we can focus on cleaner and reduced travel, clean energy sources, achieving net zero supply chains in businesses, and low-carbon homes, a significant impact can be achieved – both on carbon emissions and on social inequalities. 

I confess I am finding it difficult to find reasons to be cheerful during COP26, when much of the focus is on the bleak picture of a worst-case scenario which feels an increasingly likely outcome. But in this case, action on all fronts is the only remedy for a lack of cheer.  

“The world’s richest 1% are set to have per capita consumption emissions in 2030 that are still 30 times higher than the global per capita level compatible with the 1.5⁰C goal of the Paris Agreement, while the footprints of the poorest half of the world population are set to remain several times below that level. By 2030, the richest 1% are on course for an even greater share of total global emissions than when the Paris Agreement was signed. Tackling extreme inequality and targeting the excessive emissions linked to the consumption and investments of the world’s richest people is vital to keeping the 1.5⁰C Paris goal alive.” – Oxfam.

Gayle Monk, senior associate, Anthony Collins Solicitors

When Eden District Council secured government funding, they needed our help to get projects underway.

Eden District Council were successful in their bids for Green Homes funding from the Government. Now homeowners living in the Cumbria region can apply for support to install insulation and introduce low-carbon heat measures.

The UK Government’s Green Homes Grant Local Authority Delivery (LAD) Scheme has allocated £500 million to boost energy efficiency, reduce fuel poverty and phase out fossil fuel heating. This is all to support the UK’s commitment to reach net zero by 2050.

By taking the lead, Eden Council is responsible for assigning funding to different local authorities in the area and for ensuring efficiency measures are carried out in the homes of all council districts within the consortium.

Allocating the funds is a challenge in itself, let alone trying to arrange the work. When Eden first heard they’d been awarded the funding, they turned to the Anthony Collins Solicitors team for our expertise and experience in helping local authorities manage these challenges.

What we did

• We were always on hand when Eden District Council needed legal support – often working to tight deadlines.
• We drafted the subgrant agreements between Eden District Council and the other councils in the Cumbria region to determine how the funds would be allocated.
• We drafted the JCT contract between Eden and the organisation that will oversee the installation of the efficiency measures in people’s homes, making the homes greener.
• We advised on the data-sharing arrangements involved between the various organisations in the scheme.

What’s next?

Eden District Council have been awarded LAD phase 2 funding so will continue to make more homes greener in the Cumbria region and support lower-income households. This will include everything from external wall insulation and smart heating controls, to air source heat pumps to loft insulation.

“We have a vast amount of experience working for local authorities, so we were the perfect fit for putting together the partnership working arrangements. Of course, any firm can do contracts, but we are very much aligned with projects like this which are helping tackle the climate change emergency.”

Natalie Barbosa, senior associate, Anthony Collins Solicitors

We’re proudly supporting Newcastle City Council as they make large-scale changes on their journey to net-zero.

When it comes to the climate change emergency, the clock is ticking and there’s no time left for talking. Newcastle City Council (NCC) know they need to take action. As one of the most active local authorities, they’re showing others how it’s done with our support.

The large-scale programme will help make spaces more sustainable for the future. Changes involve innovative measures to tackle climate change, from solar panels to smart building management systems, to more energy-efficient windows and pipework insulation.

Unlike other projects, the council weren’t procuring the work from scratch, meaning we needed to consider the existing frameworks and relationships. Throughout it has been key to make sure new projects fit into current arrangements and comply with legal requirements, but at a pace and in a way that everyone is happy with.

The success of this partnership has depended on our pragmatism, practicality and rapport with all parties. For example, our construction lawyers have worked closely with NCC’s legal team and key officers, particularly when supporting them through negotiations with the contractors. And that’s just one area of our work.

How we helped

Our support for NCC is split across three key areas:

• Commercial – provided subsidies advice on a technically challenging issue. We have also advised on the public procurement rules to procure two main contractors in timescales that wouldn’t have been possible through a full procurement process.
• Construction – helped negotiate pre-construction services agreements for the speedy delivery of the early stages of design by the contractors’ teams, then we negotiated the full building contracts.
• Energy-specific – drafted and reviewed energy documents including an energy savings agreement, and heat supply and connection agreement.

What’s next?

The Anthony Collins Solicitors team are extremely proud of this partnership and hope to support the client through future phases of funding.

“This is a very important programme to make public buildings more sustainable. Together we’re hoping to develop an approach that is an example of good practice for the future. We’re very proud of this project and know that work like this will encourage the government to spend more in this area.”

Mark Cook, partner, Anthony Collins Solicitors

The development involves creating spaces for living, playing and working. As part of this ambitious project, Anthony Collins Solicitors (ACS) are supporting a local authority to procure a district heat network which will be the first of its kind in the UK, and are making use of funding from the Department for Business, Enterprise & Industrial Strategy.

Taking advantage of natural hot springs, the district heat network will extract warm water from below the ground via a series of boreholes. This water will then go to the energy centre, and from there a warm water supply will be directed through a pipe network to supply homes and businesses with heat. The result? Fewer carbon emissions will be generated than from standard gas boiler systems.

Being the first to do something so innovative creates its own challenges. From ensuring funding is spent compliantly to producing all legal documents, there have been a number of hurdles. ACS have helped the council navigate the unknowns and provided fast-paced legal support with work often being turned around within 24 hours.

The ACS team are able to advise across all areas, including construction, state aid and public procurement. This means we’ve been able to provide the council with rounded advice throughout the entire process.

How we helped procure the heat network

• We managed complex issues around funding.
• We provided guidance through the negotiated procedure under The Utilities Contracts Regulations 2016.
• We worked with the council’s other consultants by reviewing the tender documents to make sure they were compliant.
• We provided strategic guidance on the contractual and company structure.
• We produced the contractual documents including the main building contract, a separate term contract and an operate and maintain agreement for the energy centre.

What’s next?

Anthony Collins Solicitors continue to support the local authority, with work on the ground anticipated to start soon. The team have also worked on heat supply agreements for use with the commercial and residential tenants.

“This project is the first of its kind in the UK. We need schemes like this one to push innovation forward and support the government’s plan of reducing carbon emissions.”

Martin Brown, associate, Anthony Collins Solicitors

Stockport Homes and their maintenance partner B4Box have a great working relationship and a common goal of benefitting their communities in everything they do. To maintain this approach, they needed to turn the traditional procurement process on its head.

For years, B4Box have partnered with a range of housing organisations for maintenance and repairs, but their unique relationship depended on the usual cycle of tendering for contracts. B4Box and Stockport Homes wanted to do things differently, working together on a more permanent basis so they could contribute more to their community and the environment.

Procurement law exists for a good reason. But occasionally, the conventional application of that law can get in the way of innovation and long-term collaboration. Stockport Homes and B4Box engaged Anthony Collins Solicitors (ACS) with solving the challenge of how they could continue their partnership.

Stockport Homes manage the housing stock of Stockport Council, while B4Box are a construction firm with a focus on training. By setting up an exclusive collaboration, the two organisations hoped to achieve long-term good for society and the environment. Stockport Homes purchase construction and repair services from B4Box, who train and employ local people in need of work. Essentially, Stockport Homes are buying employment for local people, using construction as the tool.

Young people not in education and long-term unemployed people would benefit from new opportunities. And, since B4Box are committed to recruiting from within five miles of a job site, there is a significant reduction in travel miles (and therefore carbon emissions) compared to a typical works contract, where the contractor can source its workforce from far and wide.

ACS’s Mark Cook and Gayle Monk have worked with the two clients for a number of years. Since Mark literally co-wrote the book on using contracts to achieve community benefits (Achieving community benefits through contracts: law, policy and practice by Richard Macfarlane and Mark Cook), ACS were the perfect partner to help the two organisations transform their working model.

How we solved the procurement challenge

• We advised on how to achieve these specific social and environmental goals while procuring services – something often thought impossible by those without specialist knowledge.
• We worked extensively with Stockport Homes and B4Box to design the framework for this contract around five key principles – one of which is environmental sustainability.
• We reassured the clients that they had enough justification for a direct award because of the unique nature of this contract.

What’s next?

There are lots of benefits to this model of contract – not just the immediate environmental benefits of reduced travel, but also the long-term improvements in society by getting more people into work. There can only be one logical next step: rolling this out further.

We’ll keep working with Stockport Homes and B4Box to help them grow this partnership. And we’ll engage with any new opportunities to employ this model elsewhere around the country.

“Mark doesn’t just tell me what the law is, he tells me what’s the right thing to do.”

Aileen McDonnell, CEO, B4Box

New legislation? No problem. We’ve become experts in conservation covenants while helping Kent Wildlife Trust.

When the conservation covenant legislation is passed, it will change the way land is protected, forever. Conservation covenants won’t be able to be overridden – even if the area is sold on. Unfazed by the unchartered territory, the Anthony Collins Solicitors (ACS) team helped Kent Wildlife Trust prepare to preserve land in the area.

As Kent Wildlife Trust’s nominated lawyers, we provide legal support on a range of projects, including the opening of their new country park and visitor centre. However, their latest challenge has been completely different – preparing for the introduction of conservation covenants.

Conservation covenants have the potential to protect land more permanently. Unlike the greenbelt, this isn’t something councils can override. Although already in force in Scotland and in countries like New Zealand, the law will be new to the rest of the UK.

Putting a conservation covenant in place protects the environment, promotes biodiversity and paves the way for landowners to be paid to manage their land to store carbon, clean water and other ‘ecosystem services’. The covenant might state that the butterfly and bee population in the area needs to increase by 1% per annum. However, it could also prohibit certain activities like burning peat for grouse shooting, which releases carbon into the atmosphere.

Recognising how vital this new law will be, the Trust decided they wanted to reach out to farmers in their area and ask whether they would apply. Helping the Trust on this journey has also meant the ACS team have developed expertise in this area before the law is even in place.

What we did to help Kent Wildlife Trust prepare

• We reached out to different jurisdictions to discuss their approach.
• We carried out our own research to decide what agreement would be most suitable.
• We drafted a conservation covenant for Kent Wildlife Trust so they’re prepared for when the legislation is passed.
• We developed expertise so we’re already ahead of the game when it comes to giving legal advice in this area.

“When it’s a totally new area of law, other firms might be wary about it. But we’re not afraid to be ahead of the pack. This hasn’t even come into law and we’ve already drafted an agreement to help prepare one of our clients.”
Natalie Barbosa, senior associate, Anthony Collins Solicitors