Liability in environment law 3

United Kingdom

United Kingdom

Environmental Offences

1.1 In recognition of public concern over the generally low level of fines for pollution incidents (particularly those awarded against wealthy companies) and lack of consistency in sentencing, the Government has called upon the Sentencing Advisory Panel to review the sentencing of certain environmental offences. A consultation paper has been issued looking at five areas: breaches of IPC and air pollution control, illegal waste deposit, polluting controlled waters, illegal water abstraction and failure to meet packaging obligations and regulations. The paper also aims to assess the weight that should be given to aggravating and mitigating circumstances, together with what should lead to custodial or community sentences rather than fines and how to calculate appropriate fines for corporate defendants. (Sentencing Advisory Panel Press Notice, 6 October 1999)

1.2 Further to the Environment Agency's revised prosecution and enforcement policy published in January 1999, "functional guidelines" have been formulated to help enforcement officers implement the policy. A complaint in the past had been that there was not a consistent policy, with the previous code of practice criticised for not ensuring enforcement consistency. The new guidance provides detailed assistance to enforcement officers on action to be taken for offences covering waste, water, radioactive substances, fisheries, flood defence and navigation. The guidance is to be reviewed on a regular basis to reflect changes in legislation and policy. (EA, October 1999)

Compensation

1.3 A group of anglers have won record compensation of £415,000 following a 6-year High Court battle over a polluted stretch of the River Eden in Cumbria in March 1993. 5,000 gallons of ammonium hydroxide spilled into the river killing thousands of fish, including salmon and trout, leaving many angling clubs facing bankruptcy. Hotels and guest houses lost trade due to the spill, with the River Eden previously being one of the finest rivers for trout fishing in the region. Twenty angling clubs and fishery owners, backed by the Anglers' Conservation Association took court action against the farmer and the supplier and manufacturer of the agricultural chemical. Under the settlement, 60% of the compensation will go towards an environmental fund set up for conservation work on the river. (The Sunday Telegraph, 14 November 1999)

Landfill Tax

1.4 In the first successful criminal prosecution of a landfill tax case by HM Customs & Excise, a Welsh haulage contractor and farmer has been sentenced to 12 months for being knowingly concerned in the fraudulent evasion of landfill tax. In passing sentence, the judge said that due to the scale, persistence and seriousness of the offence only a custodial sentence would be appropriate. The defendant, a landfill site operator, had failed to register with Customs & Excise on the introduction of the landfill tax and consequently did not pay any landfill tax in respect of disposals at his site. He maintained that he was not liable to be registered. Customs & Excise compulsorily registered him in April 1997 and required him to make returns and to pay landfill tax. Returns were submitted showing "nil" tax payable which led Customs & Excise to launch a criminal investigation. On searching the defendant's premises, it was found that the price charged for disposals of waste had increased by £2 per tonne with effect from 1 October 1996 on account of the landfill tax, however, this was not declared or paid to Customs & Excise. The total amount of tax said to have been evaded was over £105,000. (HM Customs & Excise News Release, 4 November 1999)

Waste Offences

1.5 A custodial sentence has been imposed by Newport magistrates following a prosecution brought by the Environment Agency Wales. The defendant pleaded guilty to keeping controlled waste on land except in accordance with the provisions of a Waste Management Licence, contrary to Section 33(1)(b) and 33(6) of the Environmental Protection Act 1990 and guilty to failing to prevent the escape of that controlled waste onto neighbouring land, contrary to Section 34(1)(b) and 34(6) of the same Act. The defendant had previous convictions of waste management offences and was operating an unlicensed waste transfer station. The sentence sends a strong, clear message to those who operate waste sites that the Agency will use all its powers to ensure that such sites operate within the law. (EA News Release, 25 November 1999)

1.6 Two men have been given custodial sentences by Southend Crown Court for the illegal disposal of waste tyres contrary to Section 33 of the Environmental Protection Act 1990. The two men had contracted to remove over 2,000 lorry tyres and, using aliases, rented the use of a small yard for two weeks where they dumped the tyres. The judge said that the offence was serious enough to warrant a custodial sentence and that the Court could not be seen to impose anything other than a sentence of imprisonment. (EA News Release, 7 December 1999)

European Union

Contaminated Steam

1.7 A preliminary ruling by the Sixth Chamber of the Court of Justice of the European Communities has held that the term "discharge" under Directive 76/464/EEC on pollution caused by certain dangerous substances discharged into the aquatic environment of the European Communities includes emissions of contaminated steam which precipitates onto surface waters. In a case brought by the Netherlands, a third party operating a wood treatment business releasing steam contaminated with arsenic, chromium and copper, settled onto surface waters and a ditch adjoining the land of a claimant. The court held that it would be unreasonable to exclude such emissions from Article 1(2) of the Directive merely on the grounds that they were not in liquid form. (The Times European Law Report, 15 October 1999)