Festival season—using the law effectively to protect the environment

Festival season—using the law effectively to protect the environment

 

With festival season underway, we look at the environmental impact of these large-scale music events and how they can be adapted to have a less damaging effect. Some festivals are already taking action to reduce their waste and carbon footprints and Jeremy Pike, barrister at Francis Taylor Building, and Richard Voke, partner and ex-regulator at Temple Bright, discuss the roles of local authorities, festival organisers and consumers in promoting environmental awareness and incorporating it into licensing decisions and onsite behaviour. Pike explains how existing legislation can best be utilised to protect the environment in large live music events, while Voke suggests how it can be improved to reflect changing consumer priorities.

 

Driving change

 

Music festivals are increasingly considered a highlight of summer-time fun. In 2015, Powerful Thinking, a think-tank working towards smarter energy management practices in the live events industry, recorded that UK music festivals drew 3.17 million attendees, the year directly after the hottest year on record. And yet, UK festivals produce 23,500 tonnes of waste each year—only 32% of which is recycled—according to Powerful Thinking. Festivals are slowly turning to more environmentally-friendly practices, fuelled by middle-class, sustainability-conscious consumer choice, Richard Voke says. He explains that ‘festivals are catering for this demographic by providing more than just music—they provide an ever-increasing content of environmental and lifestyle activities to keep their attendees’ intellectual faculties occupied between the main acts’.

Indeed, in 2019, Glastonbury festival announced it was banning all on-site plastic bottle sales—including those in dressing rooms, backstage or any catering areas—to reduce the amount of plastic waste. Instead, the festival will provide free water taps and water refills for guests to bring their own containers to. As part of its Green Mission campaign, BoomTown has pledged to introduce a ‘zero waste space’ in its campsite where no tents are leftover and no rubbish will be left at the site.
 
Another concern is that loud music, bright lights and fireworks can scare wildlife and disrupt their natural behaviours including, Pike points out, legally protected areas such as sites of special scientific interest and European ‘special protection areas’. Furthermore, festivals require huge energy, water and food consumption. Shambala is attempting to address these issues by choosing plant-based milk over dairy products in 2019, building on its 2016 decision to go fish and meat free. This choice, the festival claims, is due to the environmental impact and carbon emissions of meat and dairy based products.
 
The largest impact resulting from a festival however, Pike argues, is transport, and this lies largely with the individual attendees. Indeed, the Powerful Thinking report calculated that travel typically constitutes approximately 80% of a festival’s total carbon dioxide emissions (excluding the artist’s travel which could involve plane transport). That was approximately 0.6 litres of diesel per person per day. Because of this, Pike suggests ‘there may be a debate in the future as to whether festivals should feature large numbers of international acts, because of air transport emissions’.
 
But is it enough to leave the main driver behind change to consumer choice? Voke criticises the ‘simplistic and outdated’ impression reflected by mainstream media and the law makers/enforcers. The law treats festivals as if they are still ‘counterculture exercises for rebellious young people who enjoy loud music, get drunk and stretch the narcotics related law’, Voke warns, arguing that in fact laws should be updated to reflect the changing consumer priorities.
 

So, how can the law help festivals go green?

 

 

 

 

Demanding environmental conditions in planning decisions

 

Tightening regulation over these events to enforce more environmentally-friendly practice could lie in incorporating these priorities into existing legislation over introducing new regulations. Pike points out that if a single festival, or a combination of events in one calendar on the same site, exceeds 28 days in that calendar year, or requires permanent structures, the organisers will need to obtain planning permission. The 28 day limit results from what are known as ‘permitted development rights’—ie the right to do something that would otherwise need planning permission, in this case if the activity is merely temporary, not exceeding 28 days—for the temporary use of land which are set out in Part 4, Class B of The Town and Country Planning (General Permitted Development (England) Order 2015, SI 2015/596.
 
Pike suggests that environmental impact could be incorporated into the decision to grant planning permission, by ‘including conditions which required certain products not to be used, or activities not to be permitted, in order to prevent harmful impacts such as waste, noise and so on’. The conditions could also stipulate that particular renewable, or green sources of energy be used to power the festival. Furthermore, to tackle travel, one of the biggest contributors to the carbon emissions of festivals according to Pike, he suggests that ‘car parking could be limited or prohibited, and “green travel plans” could be required in order to promote or focus on the use of public transport’.
 
These instances of compromising and involving environmental health in decisions surrounding the early states of decision making about the management of a festival, could be a hopeful option. However, the above examples are only relevant if an event or festival requires planning permission. If they do not, the decision and responsibility will lie with the local authority as special planning conditions cannot be imposed if permission is not required. One option for environmentally-conscious local authorities, Pike says, would be to ‘remove the “permitted development rights” from a particular area where a festival was regularly held, in order to require that planning permission was needed, and therefore enable conditions to be imposed’.
 

It seems that organisations and councils must ensure they are in a position to insist upon sustainable and ‘green’ festival practises on land within their jurisdiction, but ensuring this lies in the minutia of specific planning legislation.

 

Adding environmental conditions in licences

 

Environmental conditions can also be applied when granting a licence to a festival. Under the Licencing Act 2003 (LA 2003), festival organisers who want to sell alcohol or provide live or recorded music to more than 500 people after 11:00pm must acquire a ‘premises licence’. Pike suggests that ‘food and drink waste is likely to be one of the main contributors to the waste caused by a festival’, therefore ‘a premises licence under LA 2003 can also contain conditions relating to the way entertainment is provided and alcohol is sold—in particular in relation to the drinking vessels (ie plastic cups) in which alcohol is served’.

 

 

Tackling ‘nuisance’ and noise

 

Under the Environmental Protection Act 1990 (EPA 1990), a local authority has the power to stop a ‘nuisance’ which has occurred or prevent one that might occur—such as excessive noise. Loud music, as a types of human noise pollution, is known to disrupt local wildlife, and in 2017 the Department for Environment, Food and Rural Affairs (Defra) commissioned a study on the danger human noise pollution poses to UK wildlife and biodiversity. And the fact that, due to their size and that they can disturb the local residents, festivals are usually situated in fairly rural areas, where they are more likely to impact wildlife.
 
Local authorities could exert their power under EPA 1990 to place conditions limiting noise levels when granting planning permission for a music festival or similar event, and even when planning permission is not required, as Pike explains:
 
‘If planning permission is not required there would be no such limits but the local authority’s powers under EPA 1990 would allow it to serve an “abatement notice” against any actual or anticipated nuisance caused by noise. There are no noise limits set out in legislation. Whether a level of noise was a nuisance to someone at a particular location would be in the discretion of the local authority, in the first instance. Failure to comply with an abatement notice is a criminal offence.’
 
However, Voke says that the protections under EPA 1990 do not go far enough, and amount to ‘only a limited framework for environment protection and are really only used for ‘after the event’ punishment’. As current legislation stands, Voke says ‘there is no effective requirement in the festival related law to consider the wider environmental considerations such as carbon footprint and sustainability in general’.
 

Voke’s concerns raise the question of whether legislation is at heart reactive, rather than proactive regarding environmental protection. This is problematic because it waits until the damage has already been done. Voke emphasises the need for a shift in approach, saying that existing ‘regulation is being left behind in terms of effectiveness when compared with the increasing self-policing demands of the modern festival attendee’. Once again, it seems to be left up to the consumer to drive change.

 

 

Protected wildlife or areas

 

It is worth checking whether an event is eligible for an environmental impact assessment (EIA), eg if the site is a site of special scientific interest, or permitted development rights have been removed. Pike provides the example of the ‘T in the Park’ festival in Perthshire, which was told by the local authority that an EIA was required, and had to obtain planning permission to occupy a new site at Strathallan Castle in 2015. In 2016, the festival took place at the Strathallan site despite the presence of nesting ospreys (a protected species), but the festival did not return to the site in 2017.
 
This is an example of where existing protections can be utilised by local authorities to control, and reduce the damaging effect of a festival, or similar event, on the environment in their region.
 

But does current legislation provide enough protection?

 

 

Changing priorities

 

So, can festivals go green? Voke and Pike both agree that the choice ultimately lies with the consumer, with Voke going as far as to suggest that ‘the festival goers are generating the environmental framework within which such events should be constructed’. For a festival to be completely green, Pike says it would involve:
 
‘…no air travel, and festival goers would arrive by electric vehicle or by bicycle. There would only be renewable energy sources used. Food and drink would be supplied from a relatively small area around the festival site, in compostable packaging. This is likely to mean a very ‘local’ festival, possibly with only “local” artists.’
 
An example of this in action would be the ‘Howlin’ Fling’ festival on the Isle of Eigg, Scotland, Pike points out. The island where the festival is based, is powered only by renewable energy sources, and islanders—who jointly own the island outright—provide much of the food, drink and accommodation for the festival. Pike attributes the way the event is run to ‘the world-view of the island’s inhabitants’ (there are no cars or buses on Eigg), making this a real-world example of how the consumer and local authority can dictate the environmental impact a festival has on land under their control.
 
Voke says ‘it may be that soon festivals will compete against each other not only in terms of headline acts but also in terms of carbon footprints and waste/nuisance minimisation’ and indeed festivals are beginning to promote their ‘greenness’. Shambala, for example, announced in 2017 that it was the first festival to achieve a 5* Creative Green rating for its environmental performance for initiatives including:
 
  • being 100% renewably powered
  • being meat and fish-free to reduce carbon emissions
  • managing transport sustainability
  • banning sales of single use plastics on site

As environmental impact becomes a priority within the large events industry—fed by recognition through consumer choice and awards such as Creative Green certification and the International A Greener Festival awards—a cultural shift could be on the horizon. Indeed Voke says ‘the 5* Green rating is an example of where things are going and, although festivals will primarily be judged on their artistic content, the new demographic of festival attendees will have an influence on how they impact the environment in the future’.

 

Government action

 

As for enhancing the legal framework, Voke recommends an approach ‘along the lines of the general promotion of sustainability and environmental stewardship in the style of The Producer Responsibility Obligations (Packaging Waste) Regulations 2007, SI 2007/871 or the ill-fated Carbon Reduction Commitment (CRC)’. While neither of these changes were popular, Voke highlights that ‘at their core is an imperative to improve sustainability performance’ and this is what needs to happen in wider legislation, for carbon neutrality and effective environmental protection. For similar reading, see the Committee on Climate Change’s ‘Net Zero’ report and LNB News 02/05/2019 65.
 
Pike highlights the government’s biodiversity strategy for England, ‘Biodiversity 2020’, where it promised ‘by 2020 measures will be in place so that biodiversity is maintained, degradation halted and restoration is underway’, but expresses doubt that any of the measure will address the damage caused by festivals and big events. What both Pike and Voke agree is that consumer choice will be the key to driving change and protecting the UK environment in the future.
 

Jeremy Pike is a barrister at FTB chambers (www.ftbchambers.co.uk) specialising in planning and environmental law and local government law.Richard Voke is a partner at Temple Bright and ex-regulator now specialising in regulatory matters for organisations in dealing with regulatory bodies, such as the Environment Agency, HSE and Environmental Health.

Written by Samantha Gilbert.

This was originally published on LexisPSL Environment. For more content on hot topics and trends in environmental law, click here for a free trial. 

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About the author:

Samantha is a journalist at LexisNexis with over four year's experience in legal publishing. She has a blog, ‘Green Heart’, on which she promotes a plastic-free lifestyle and writes fiction in her spare time, which has been published. She specialises in feature-style and analytical news articles, with a particular interest in environmental law, arts and heritage, and women’s rights.