A review of recent cases in environment law 2

United Kingdom

United Kingdom

Waste management

A fine of GBP22,000 and costs of GBP4,710 were imposed on a Lincolnshire agricultural business which pleaded guilty to permitting the deposit of controlled waste without a waste management licence and failing to comply with the duty of care by not providing and keeping waste transfer notes. The prosecution was brought by the Environment Agency under sections 33(1), 34(1)(a) and 34(6) of the Environmental Protection Act 1990 after liquid effluent containing potentially harmful agricultural chemicals generated by the company's activities was illegally deposited on farm land in Cambridgeshire.
(Environment Agency News Release, 23 November 2000)

Packaging waste

Mayer Parry Recycling applied to the Environment Agency for accreditation as a reprocessor with entitlement to issue packaging recovery notes ("PRNs"), the documents used as evidence of compliance with recovery obligations under The Producer Responsibility Obligations (Packaging Waste) Regulations 1997. The reprocessing process carried out by Mayer Parry Recycling involved the rendering of scrap metal into a form which could be used by a steel manufacturer as furnace feed stock in the production of ingots, sheets and coils. The Agency accredited the steel manufacturer as the reprocessor because it, rather than Mayer Parry Recycling, produced the final products. Mayer Parry Recycling applied to the High Court for judicial review of this decision. Following Carnwath J's decision in Mayer Parry Recycling Ltd v Environment Agency [1999] Env LR 489 that the feedstock had ceased to be waste for the purposes of the EU Waste Framework Directive (75/442/EEC), Mayer Parry Recycling argued that this also applied to metallic packaging waste under the EU Packaging Waste Directive (94/62/EC), the EU legislation implemented in part by the 1997 Regulations. As Mayer Parry Recycling was responsible for converting the waste into a raw material, it should therefore be regarded as the reprocessor. The Agency contended that although the directives should be construed in the same way, the decision of Carnwath J as to when the waste ceased to be waste was incorrect. The Secretary of State intervened in the case to argue that different decisions on when waste ceases to be waste were possible under the two directives, depending on the facts of the case. As it was impossible for the High Court to decide the matter beyond reasonable doubt, the interpretation of the two directives was referred to the ECJ and the case adjourned.
(R v Environment Agency, ex parte Mayer Parry Recycling Ltd, New Law Digest, 29 September 2000)

Following the High Court's decision in R v Environment Agency, ex parte Mayer Parry Recycling Ltd to refer the interpretation of the EU Waste Framework and Packaging Waste directives to the ECJ (see above), Mayer Parry Recycling applied for interim relief on the grounds that it should be accredited by the Environment Agency as a reprocessor on the basis of the decision in Mayer Parry Recycling Ltd v Environment Agency [1999] Env LR 489. The High Court refused the application stating that although Mayer Parry Recycling had established a strong arguable case, the matter had been referred to the ECJ because it was not clear whether the company's legal action would be successful. In deciding on interim relief, it was necessary for the Court to consider the balance of convenience. In doing so, it was important to uphold the existing law, even if the issue under consideration was that law. Allowing a change in the accreditation rules could result in other companies in a similar position to Mayer Parry Recycling applying for interim relief and there would be administrative difficulties. There was also some evidence that increasing the efficiency of the accredited steel manufacturers through the application of PRN revenue was the best way of ensuring that the obligations of the Secretary of State under the Packaging Waste Directive were met. The public interest was in favour of the status quo. An interim declaration that Mayer Parry Recycling should be accredited was undesirable and unnecessary. There would be no interim relief or an injunction with the effect that the steel manufacturer should pay the amount obtained for PRNs if Mayer Parry Recycling's case eventually succeeded.
(R v Environment Agency & another, ex parte Mayer Parry Recycling Ltd, New Law Digest, 9 November 2000)

Transfrontier shipment

In the first prosecution under The Transfrontier Shipment of Waste Regulations 1994 in England and Wales, a Stockport company was fined GBP1,500, plus costs of more than GBP4,594.80, for importing drums of flammable solvent waste without notification to the regulatory authorities. The waste shipment, which was generated by the company's business in Sweden, was not contained properly and there was no consignment note, waste description or hazard warning label. The illegal import was detected when part of the shipment arrived at a solvent recovery firm without the required documentation. The company pleaded guilty to one charge of importing waste without notification to the relevant regulatory authorities as required by article 26 of the EU Transfrontier Shipment of Waste Regulation (259/93), an offence under regulation 12(1) of the 1994 Regulations.
(Environment Agency News Release, 17 November 2000)

IPC

An accidental airborne release of benzyl bromide which required the evacuation of neighbouring homes and hospital treatment for some residents led to the prosecution of a Leeds chemical company by the Environment Agency. The company admitted three charges: failing to maintain in good condition all plant, equipment and technical means used in carrying on an IPC prescribed process contrary to sections 6(1) and 23(1)(a) of the Environmental Protection Act 1990; failing to comply with the general implied authorisation condition to use BATNEEC to minimise releases and render harmless substances released when carrying on a prescribed process contrary to sections 6(1), 7(4) and 23(1)(a) of the 1990 Act; and failing to conduct its undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in its employment were not exposed to risks to their health and safety contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974. Fines of GBP7,500, GBP2,500 and GBP15,000 respectively were imposed for the offences, plus costs of GBP4,800. The Agency's prosecution powers in relation to health and safety legislation were introduced by the Environment Act 1995 and this was one of the first times they have been used.
(Environment Agency News Release, 1 November 2000)

A Scunthorpe steel manufacturer was fined GBP37,000, plus costs of GBP51,960, after pleading guilty to three charges of breaching the conditions of its IPC authorisation by failing to maintain equipment and provide written operating instructions, contrary to section 6(1) of the Environmental Protection Act 1990. A blockage in an exhaust gas cleaning process led to a cloud of 54 tonnes of coke oven gas being released from the company's factory.
(Reuters, 8 November 2000)

APC

Time Right Ltd, a neighbour of Thornby Farms, was granted an APC authorisation under Part I of the Environmental Protection Act 1990 and The Environmental Protection (Prescribed Processes and Substances) Regulations 1991 for an incinerator used to dispose of animal carcasses. The authorisation was granted subject to a condition that air emissions from the incinerator would not exceed those set by the Secretary of State's guidance note "Animal Remains Incineration - Processes under 1 Tonne an Hour" (PG5/3). Thornby Farms applied for judicial review of the decision to grant the authorisation on the grounds that animal carcasses should be regarded as clinical waste and subject to the stricter pollution controls set out in guidance note PG5/1. The High Court ruled that animal carcasses were not clinical waste and the correct guidance and pollution controls had been applied. PG5/3 stated that it did not apply to clinical waste incineration processes and that the more stringent guidance note PG5/1 should only be applied where more than incidental amounts of clinical waste were present together with the animal remains. Clinical waste was defined in the 1991 Regulations as "waste other than waste consisting wholly of animal remains". Further, animal carcasses were not Directive waste and did not qualify as clinical waste. The application was dismissed.
(R v Daventry District Council, ex parte Thornby Farms, Times Law Reports, 5 October 2000)

Water pollution

A Welsh biocide manufacturer which polluted the River Tawe and killed more than 7,000 salmon and trout, estimated to be 99 percent of the local fish population, pleaded guilty to causing polluting matter to enter controlled waters contrary to section 85(1) of the Water Resources Act 1991 and causing liquid or solid matter to enter a watercourse causing water to be poisonous or injurious to fish contrary to section 4 of the Salmon and Freshwater Fisheries Act 1975. The company received fines of GBP10,000 and GBP2,750 respectively for these offences and was also ordered to pay costs of GBP20,497 to the Environment Agency which brought the prosecution. The incident occurred when an industrial strength detergent entered yard drains at the company's premises and reached the river.
(Reuters, 13 October 2000)

The River Llynfi was polluted and 100 percent of local fish killed when cement grout and suspended solids were discharged directly into the river during the construction of a trunk sewer. The company responsible was fined GBP13,000 after pleading guilty to causing polluting matter to enter controlled waters contrary to section 85(1) of the Water Resources Act 1991 and GBP3,000 after admitting causing liquid or solid matter to enter a watercourse causing water to be poisonous or injurious to fish contrary to section 4 of the Salmon and Freshwater Fisheries Act 1975. Costs of GBP4,930 were awarded against the construction company which had already voluntarily spent in the region of GBP30,000 to remediate the damage.
(Environment Agency News Release, 29 November 2000)

Water supply

A water undertaker was fined GBP119,000, with costs of GBP125,598, for supplying water unfit for human consumption, contrary to section 70 of the Water Industry Act 1991. The company pleaded guilty to 17 charges relating to four incidents in West and North Yorkshire during 1998 when discoloured water was supplied but is appealing against an earlier ruling by the judge on the meaning of "water unfit for human consumption". This term is not defined in the 1991 Act: the Drinking Water Inspectorate's position is that this is a matter for the courts to decide on a case by case basis whilst the water company argued that a prosecution for water unfit for human consumption on the grounds of discolouration amounted to an abuse of process, being contrary to the will of Parliament. The judge was satisfied however that the prosecution had been initiated lawfully and directed the jury that water may be regarded as unfit for human consumption either if, when drunk it would be likely to, or did in fact, cause injury to the consumer, or, where by reason of its appearance and/or smell, it was of such quality that it would cause a reasonable consumer of firm character to refuse to drink it or use it in the preparation of food. Prosecution costs were stayed pending the application to appeal.
(DWI News Release, 8 December 2000)

The Drinking Water Inspectorate also prosecuted a water company for supplying water unfit for human consumption to consumers in the Nantwich area. Following an incident in which water with a taste and odour was supplied, the company pleaded guilty to five charges brought under section 70 of the Water Industry Act 1991. Cases concerning the supply of water contaminated with diesel oil and discoloured water were taken into consideration. A fine of GBP20,000 and costs of GBP7,100 were imposed.
(DWI News Release, 13 October 2000)

Statutory nuisance

Mr Godfrey owned a building used for music practice. Following complaints from neighbours, an abatement notice was served by Conwy County Borough Council on the basis that the noise was a statutory nuisance under section 79(1)(g) of the Environmental Protection Act 1990. The noise emanating from the building was not higher than ambient levels but the drums and bass could be heard strongly and the inspector considered this to be annoying in that it was out of place, repetitive and of long duration. Mr Godfrey appealed to the High Court. The Court ruled that the correct test for a statutory nuisance was the common law test of unreasonable interference with the enjoyment of property. It could not be contended that noise above ambient levels must be demonstrated before statutory nuisance could exist: noise could be a nuisance if it was out of place and intrusive. The appeal was dismissed.
Godfrey v Conwy County Borough Council, [2000] All ER (D) 1809)

Mr Oakley occupied a house in which the toilet had no hand washing facilities. The only sinks were either in the kitchen or a bathroom reached through the kitchen. Following a complaint from him that there was a risk of cross-infection, the magistrates court made an abatement order requiring that the toilet be moved to the bathroom because the situation gave rise to a statutory nuisance under section 79(1)(a) of the Environmental Protection Act 1990 in that the premises were in such a state as to be prejudicial to health or a nuisance. Birmingham City Council appealed against the order to the House of Lords. The important question was the meaning of "the state of the premises", a phrase which could have a broad or narrow meaning. Consideration of the purpose of this legislation, suggested that it was not possible to give an extended meaning to the words of section 79(1)(a). These provisions were intended to deal with the presence in a house of a feature that was in itself prejudicial to health because it was a source of possible infection, disease or illness. In Mr Oakley's house, the unsatisfactory arrangement of the rooms was not itself insanitary or prejudicial to health and this could not be a statutory nuisance. The Council's appeal was allowed.
(Oakley v Birmingham City Council, Times Law Reports, 30 November 2000)

Environmental impact assessment

Derbyshire County Council granted planning permission for an extension to the use and duration of a landfill site. During its consideration of the planning application, the Council had had regard to the "relevant objectives" concerning waste disposal set out in paragraph 4(1) of schedule 4 to The Waste Management Licensing Regulations 1994 which require that waste should be recovered or disposed of without endangering human health and without using processes or methods which could harm the environment. The Council had also been provided with a document purporting to be an environmental statement as required by The Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. Mr Murray, a local resident, applied for judicial review of the Council's decision to grant the permission on the grounds that although the relevant objectives concerning waste disposal had been considered, they had not been given "substantial weight" and that the applicant had not provided an environmental statement that complied with the 1988 Regulations. This application was dismissed by the High Court. On the issue of the relevant objectives, the Court followed the ruling in R v Leicester County Council, ex parte Blackfordby and Boothorpe Action Group Ltd (unreported, 15 March 2000) that as long as the objectives have been given due regard, the weight that an authority affords them is not susceptible to challenge. In this case, the Council had taken the objectives into account and it was not under any obligation to give them "substantial weight". Further, the applicant had, on the facts of the case, provided a document which purported to be and had been treated as an environmental statement as it had complied or substantially complied with the 1988 Regulations. This situation differed from that in Berkeley v Secretary of State for the Environment [2000] All ER (D) 933 where the environmental information provided by the applicant for planning permission could not be considered to be an environmental statement.
(R v Derbyshire Country Council, ex parte Murray, Times Law Reports, 10 November 2000)

Planning and human rights

County Properties applied for listed building consent to demolish a dilapidated building in Glasgow. The consent was called in for determination by the Scottish Ministers and a reporter was appointed to hold a public inquiry and report on the application. County Properties petitioned for judicial review of this decision. It contended that the application had been called in because of an objection by Historic Scotland, an executive agency of the Ministers which would be responsible for opposing the application at the public inquiry, and that the reporter for the inquiry was appointed at the Ministers' discretion and employed and remunerated by them. The Ministers' decision therefore deprived the company of the opportunity of having its civil rights determined by an independent and impartial tribunal, i.e. the local planning authority, a situation incompatible with article 6 of the European Convention on Human Rights. The Outer House of the Court of Session held that it was an abuse of a limited company's human rights for its application to be called in by a Minister of the Crown because of an objection by a government agency: the Minister and the reporter would be acting as judge in the Crown's own cause and would not be an independent and impartial tribunal. The fact that a right of appeal existed to the Court did not cure the lack of independence of the respondents and the reporter because the dispute was subject to appeal under section 58 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 which does not give the judicial body full jurisdiction to review. There were substantial grounds for holding that the general principles concerning quasi-judicial proceedings set out in Bryan v United Kingdom [1996] 21 EHRR 342 did not apply to this case. Further, County Properties was entitled to challenge the Ministers' decision to call in the application before it was decided because its right concerned the nature of the tribunal before which it was entitled to be heard. The Court quashed the Ministers' decision as being ultra vires by virtue of section 57(2) of the Scotland Act 1998 (which incorporates article 6(1) of the European Convention on Human Rights).
(County Properties Ltd v The Scottish Ministers, Times Law Reports, 19 September 2000)

Health and safety

Proceedings against W H Smith for contraventions of health and safety legislation were instituted by a solicitor to Croydon London Borough Council at the request of a health and safety inspector. The magistrates court decided that the informations laid before them were not null and void and that the charges should be tried. W H Smith applied to the High Court for judicial review of the justices' decision. Section 38 of the Health and Safety at Work etc. Act 1974 provides that "Proceedings for an offence ... shall not ... be instituted except by an inspector or by or with the consent of the Director of Public Prosecutions". The High Court ruled that there was no power to delegate and the justices had erred in their finding.
(R v Croydon Justices, ex parte W H Smith Ltd, Times Law Reports, 22 November 2000)

An employee of the State Hospitals Board for Scotland claimed damages for psychiatric illness which he alleged was caused by the Board's actions during his employment. The Outer House of the Court of Session held that the duty of care owed by an employer to take reasonable care to avoid exposing employees to unnecessary risk of injury covered both physical and psychiatric injury. In this case, however, the pursuer's claim failed on the aspect of forseeability. Nothing that the Board had done could have been a potential cause of psychiatric illness. There was no duty to protect an employee from unpleasant emotions such as grief, anger, resentment and normal human conditions such as anxiety or stress as these did not involve any form of injury. The Board was absolved of the claim for damages.
(Fraser v State Hospitals Board for Scotland, Times Law Reports, 12 September 2000)

Wild birds

The First Division of the Inner House of the Court of Session allowed a reclaiming motion by the Royal Society for the Protection of Birds ("RSPB") against the dismissal of its petition for judicial review of a decision by the Secretary of State for Scotland to grant licences for the shooting of a limited number of barnacle geese on the island of Islay. The sites in question had been classified as special protection areas ("SPAs") under article 4 of the EU Birds Directive (79/409/EEC) to protect barnacle geese and white fronted geese. This article also requires appropriate steps to be taken to avoid any disturbance affecting the birds, in so far as it would be significant having regard to the objectives of the "directive". The parties disagreed as to which directive was being referred to however and whilst the respondents contended that it was the Birds Directive, the RSPB claimed that it was the EU Habitats Directive (92/43/EC), legislation which supplements the requirements of the Birds Directive. The Lord President preferred this latter contention: the obligation under article 4(4) was to take appropriate steps to avoid disturbance of the species for which the SPAs had been designated, in so far as it could be significant in relation to the objectives of the Habitats Directive. This would mean that when the SPAs classified under the Birds Directive were incorporated into the Natura 2000 network of protected sites established by the Habitats Directive, the same obligations would be applied to both types of sites, regardless of the legislation under which they had been designated. Applying this conclusion, the Lord President held that when deciding whether the disturbance to the geese caused by the shooting was significant, the effects in relation to the barnacle geese populations in the SPAs should have been considered by the national authority, and not just the effects on the viability of the species overall in its area of distribution. The Secretary of State had erred in his decision.
(RSPB v Secretary of State for Scotland, Times Law Reports, 12 September 2000)

European Union

Habitats

This case, concerning the designation of special areas of conservation ("SACs") under the EU Habitats Directive (92/43/EEC), was referred to the ECJ by the High Court for a preliminary ruling on the interpretation of the Directive. First Corporate Shipping Ltd, the statutory port authority for Bristol, applied for judicial review of the Secretary of State for the Environment, Transport and the Regions' decision to put the Severn estuary forward for designation as a SAC. It argued that under article 2(3) of the Directive, which provides that "Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics", the Secretary of State should have taken such matters into consideration during the selection process. Under the Habitats Directive, member states must propose to the European Commission a list of potential SACs chosen on the basis of Annex III (Stage 1) criteria and relevant scientific information (article 4(1)). The Commission must then draw up a list of sites to be designated by assessing favourable conservation status in relation to the entire EU. The ECJ observed that Annex III (Stage 1) criteria concern habitat and species conservation objectives only and it followed that article 4(1) does not provide for other requirements to be taken into account by member states when choosing the sites to be proposed to the Commission. Taking other objectives into account at national level could remove sites which are important in the EU as a whole. On these grounds, the ECJ ruled that on the proper construction of article 4(1), member states could not take economic, social or cultural requirements or regional or local characteristics into account as mentioned in article 2(3) when selecting and deciding the boundaries of sites to be proposed to the European Commission for designation as SACs. Regard could only be had to conservation matters.
(R v Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd )
(World Wide Fund for Nature UK and Avon Wildlife Trust, interveners), ECJ Case C-371/98)

Financial penalties for non-compliance

The European Commission has written to the Greek government, asking it to respect the ECJ's landmark ruling of 4 July 2000 in which Greece was fined a daily penalty payment of Euro 20,000 for its failure to comply with a 1992 ECJ order that steps be taken to implement two waste directives (Directive 75/442/EEC on waste and Directive 78/319/EEC on toxic and dangerous waste) fully into national law. This was the first time that the ECJ had taken a decision of this type under article 228 of the EU Treaty (introduced by the Maastricht Treaty) which allows financial penalties to be imposed on a member state which has failed to comply with a judgment finding that it has not met its obligations under EU law. The daily fine was calculated with reference to the Greek GDP and the seriousness and length of the non-compliance. It will only be lifted when the measures required by the 1992 ruling have been implemented. In December 2000, Greece had not paid any of the fine and the Commission was pursuing payment vigorously, requesting that Euro 1,760,000 be paid to account for the financial penalty for the three months after the judgement and sending monthly payment requests for the subsequent period. If this money is not paid, the Commission will begin to hold back structural fund payments and add interest to overdue fines.
(European Commission v Greece, ECJ Case 387/97; European Commission, December 2000)