Seasoned Regulatory Barrister for Environmental Matters

In addition to his specialist licensing and disciplinary practices, Jeremy has been involved in a wide range of regulatory cases over very many years.

Jeremy has represented the Environment Agency, Health and Safety Executive, Marine Management Organisation and local authorities in inquests and prosecutions that include waste, food, health and safety, and breach of licensing offences. He also represents companies on due diligence and criminal confiscation issues, and individuals and interest groups on statutory nuisance abatement appeals and prosecutions. An expert in the field, he co-authored The Law of Regulatory Enforcement and Sanctions: A Practical Guide (OUP) with Julie Norris.

Legal guides

Tier 1 Environmental Silk Jeremy Phillips KC – 'Responsive, unflappable and thoroughly prepared, his experience and commerciality make him a real asset.'

Legal 500

Case Studies & Testimonials

Complex challenge relating to alleged breach of Environmental Permit

The case concerned a series of alleged technical breaches of an environmental permit by one of the UK's leading food processors following a new multi-million pound investment in a new waste processing plant. Following analysis of all technical date and machine specifications drafted and advised upon a comprehensive proposal for regulatory settlement which the Environment Agency accepted was just sufficient to meet its requirements for acceptance.

"All that's left for me to do is thank you enormously and sincerely for all your assistance, guidance and brilliant advice throughout."

Retained commercial lawyer

Disposal of major environmental challenge to large city-centre food processing business

Instructed to defend a major city centre employer against long-standing environmental complaints generated by its adjoining neighbours. Success in the case meant grasping a significant amount of highly technical detail regarding the mechanics of the plant and equipment on site.

Securing the dismissal of numerous requirements in the Abatement Notice on the grounds of their insufficient precision. Identifying additional grounds of challenge and ultimately noting the Council's decision to with draw its Notice.

"Jeremy rolls his sleeves up and gets on with it. Clients have confidence he will be in the trenches with them. Very easy to work with from an instructing solicitor's point of view as he understands the realities, and is certainly not in an ivory tower. Easily the most down to earth Silk for public law."

Adam Corbin Partner | Barrister | FAAV

Swift and inexpensive resolution of long-standing noise complaint

Instructed by a retired senior practitioner through the Bar Council's Public Access scheme to consider her historic problems with surrounding farmers and their use of multiple gas-gun bird scarers throughout the growing season. Local authority EHOs declining to intervene, owing to difficulties with evidence. Identifying relevant landowners and proposing an all-party mediation. Thereafter, with the cooperation of a local councillor devising and securing a comprehensive and effective new noise management regime by which the relevant farmers agreed to be bound.

"I came to Jeremy after a four-year battle against a group of formidable opponents who were supported by a powerful union. I had spent hundreds of hours of my time and thousands of pounds on expert solicitors to obtain a partial ban on noise arising from surrounding commercial properties. In the end I was told it couldn't be done at all. Within 8 weeks, Jeremy procured the circumstances that convinced all opponents that resistance was futile and to agree, in writing, to a total ban on the noise within a mile radius of the property. They all did."

Retired international medical consultant

Successful disposal of HSE prosecution after construction fall from height

Breach of the Construction (Design and Management) Regulations 2015 in relation to construction works, most particularly in ensuring that work at height was properly planned and appropriately supervised.

Jeremy worked closely with the solicitor and client in securing and negotiating with the Executive an acceptable basis of plea, resulting in a fine significantly below all expectations.

"Jeremy Phillips KC – excellent to work with – very thorough and quick to respond – great with clients and also those making the decisions."

Health and Safety solicitor

ELB is a new blog that seeks to provide insights, updated and commentary on developments in environmental law and policy. From the  Environment Bill to climate litigation, ground-breaking domestic and international cases to developments in environmental policy, ELB will endeavour to cover the issues that matter most for those working in, and affected by, environmental law.

New Environmental Law Blog post: Statutory nuisance – and the power of mediation… by Francis Taylor Building's Jeremy Phillips KC and Horatio Waller

Walleys Quarry – Statutory Odour Nuisance

Background

Walleys Quarry is a waste landfill site located in Newcastle under Lyme and which opened in February 2007. 

In August 2021 Newcastle under Lyme Council served a statutory odour Abatement Notice on the operator of the site following an unprecedented number of complaints by both local organisations (such as Keele University, the Fire Station and Royal Stoke University Hospital) and residents living and working in the surrounding community. Most claimed nuisance and impacts on their health as a consequence of the hydrogen sulphide emissions emanating from the site. 

Legal Context

The abatement notice was (as is commonplace) appealed on numerous grounds of appeal as set out in the Statutory Nuisance (Appeals) Regulations 1995. The hearing was listed for a four week trial, with lengthy and detailed directions providing for mutual disclosure and the exchange of factual and expert evidence. In addition to factual experts, the parties each intended to call expert witnesses on hydrology, odour and landfilling. Some 96,000 documents (sifted from a much larger sample) were exchanged following disclosure. Each party had instructed leading and junior counsel. There were three initial hearings to determine preliminary issues even before the trial commenced.

The abatement notice also came in the wake of earlier judicial review proceedings (discussed on this blog here and here) brought by a local resident against the Environment Agency for failing to take steps to protect the human rights of her son who suffered respiratory problems associated with hydrogen sulphide emissions. This was ultimately addressed by the Court of Appeal in R (Richards) v Environment Agency [2022] EWCA Civ 26.

The principal grounds of appeal, however, were that the notice was 'not justified', that the Council had refused to accept reasonable alternative arrangements and that the landfill had adopted best practicable means ("BPM") to prevent or counteract the effects of the nuisance. 

The issues whether the notice was justified turned on whether or not there had not been a statutory nuisance. There were arguments around the quality of the evidence of odour, alternative potential sources of the odour, and whether the odour met the threshold for nuisance. The BPM arguments mostly turned on the efficacy of the system of gas containment, collection and utilisation employed by the landfill at the material time. The relevant time at which BPM is considered in an appeal of a statutory abatement notice is, of course, the date of the service of the abatement notice, meaning a potential inquiry by the magistrates' court into the operator's practices at an earlier point in time. An operator is not helped in establishing BPM by pointing to the improvements they have made post-notice. 

Outcome

From a very early stage in the proceedings counsel for the local authority suggested that matters might be resolved with relatively little time and expense through the process of mediation. Initially sceptical, the operator eventually agreed and appropriate arrangements were made for a provisional 4-day mediation, with Lord Carnwath appointed as mediator. The appeal settled, with the mediation being completed less than three months from the date the parties agreed to mediate, and in the event lasting only two days. 

The resulting consent order determining the appeal proceedings was subsequently confirmed by District Judge Grego. 

As part of the public agreement achieved, the operator agreed to withdraw its appeal (so leaving the abatement notice in place and effective according to its terms) and to pay a significant sum in costs to the Council. It should be said that had the adversarial litigation continued until its conclusion, the costs arising from a four week trial would have been very significantly greater. Also, even assuming a successful outcome for the local authority, that would have been far less beneficial to the local community than the mediated compromise that was actually achieved. Whilst a Judge may well have found the abatement notice to have been justified he would have had no jurisdiction to consider and resolve the issue of how the site might be managed in future to minimise the likelihood of a recurrence of the offending nuisance.

Jeremy Phillips KC and Horatio Waller were instructed by Newcastle under Lyme in this matter.