A selection of recent cases in environment and health & safety law 1

United Kingdom

Fly tipping

Ownership of a vehicle used for illegal fly tipping of waste is capable of amounting to prima facie evidence of control under section 33(5) of the Environmental Protection Act 1990 which states that where waste is carried in and deposited from a vehicle, "the person who controls or is in a position to control the use of the vehicle shall be treated as knowingly causing the waste to be deposited whether or not he gave any instructions for this to be done". The Environment Agency prosecuted a vehicle owner for three instances of knowingly causing the deposit of waste without a waste management licence, contrary to sections 33(1)(a) and 33(6) of the 1990 Act. The Agency did not claim that the owner had dumped the waste but rather that he had had control of the vehicle under the provisions of section 33(5). The defendant successfully submitted that there was no case to answer: the justices decided that just because someone was the registered keeper of a vehicle, this did not mean he was in a position to control it. In particular, there was no clear link between the defendant and the driver on the days of the fly tipping to show that the defendant was in control at those times. On appeal by the Agency, the High Court held that ownership was evidence of control although each case would depend on the facts. Where a vehicle was stolen, loaned or hired, the owner would be entitled to claim that there was no control. In this case, however, the defendant was the owner of a skip hire firm and the deposit had been made from a skip - there was prima facie evidence that he had been in a position to control the vehicle. As the justices' decision had been wrong in law, the case would be remitted back to them to allow the defendant to give evidence or raise a defence, as appropriate.
(Environment Agency v Melland, [2002] All ER (D) 31(Apr))

Packaging

A question arose concerning the application of The Producer Responsibility Obligations (Packaging Waste) Regulations 1997 to packaging waste arising out of the sale of bottled drinks in bars and clubs. Valpak Ltd, a compliance scheme established under the 1997 Regulations, contended that the landlord selling the drink should be subject to the Regulations, whilst the Environment Agency argued that where a bottle was opened by the landlord, the obligations would fall on the brewery. Under the Regulations, "packaging" is "all products made of any material of any nature to be used for the containment, protection, handling, delivery and presentation of goods - but only where those products are - sales packaging or primary packaging, that is to say packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase". Those having obligations under the Regulations, include "sellers" who supply packaging to users or consumers. The issues to be decided included inter alia (i) whether the bottle itself was sold if the drink was served by the landlord and the bottle retained; and (ii) whether having been opened, the bottle remained a "sales unit" and therefore "packaging" for the purpose of the Regulations. In answer to the first point, the High Court ruled that the purchase of a bottle of drink constituted a contract for the sale of unascertained goods and that under the Sale of Goods Act 1979, the bottle was unconditionally appropriated to the contract and that property in the bottle would pass to the purchaser. Both the bottle and the drink were sold, irrespective of whether the drink was served in a glass and the bottle kept by the landlord. Secondly, a bottle was a sales unit and packaging under the Regulations. The definition of packaging used the word "conceived" and looked to the future. In this case, the drink in the bottle was to be sold by the bottle and that bottle did not cease to be a sales unit because its top was removed. Following this reasoning, the producer responsibility obligations would apply to the landlord who supplied the packaging as a seller. Any other approach would undermine the scheme of the Regulations since the imposition of obligations would depend on narrow factual distinctions between on and off licenced premises and whether a bottle was sold opened or not.
(R (on the application of Valpak Ltd) v Environment Agency, [2002] All ER (D) 357 (May))

Large fines were imposed on three vehicle components companies after they pleaded guilty to 24 offences under The Producer Responsibility Obligations (Packaging Waste) Regulations 1997. Lear Corporation (UK) Ltd, Lear Corporation UK Interior Systems Ltd and Lear Corporation (Nottingham) Ltd were fined a total of £96,000 with £2,051 costs, for failing to register under the Regulations, take reasonable steps to recover and recycle packaging waste and provide the Environment Agency with certificates of compliance. Each of the offences was punished with a £4,000 fine.
(Environment Agency News Release, 21 March 2002)

Air pollution control

Secretary of State's Process Guidance Note PG 6.1(00) (as amended) advises on the application of the air pollution control regime to facilities for the processing of animal by products. In particular, paragraph 13 of Part II of PG 6.1 states that local authorities should supplement specific technical conditions with a general authorisation condition making it an offence for a prescribed process to be operated where offensive odours are detectable outside the process boundary unless the operator "can show he took all reasonable steps and exercised all due diligence to prevent the release of offensive odours". The United Kingdom Renderers Association Ltd applied for judicial review of this guidance, seeking a declaration that it was unlawful because inter alia the odour boundary condition was incompatible with the statutory concept of the best available techniques not entailing excessive cost (BATNEEC) and section 7(2)(a) of the 1990 Act which requires BATNEEC to be used to prevent releases of prescribed substances or where not practicable to minimise and render harmless such releases, and to render harmless any other substances likely to cause harm if released. The High Court ruled however that the guidance was consistent with the 1990 Act and the claim was dismissed. The claimants appealed, arguing that the guidance did not address the BATNEEC requirement of "not entailing excessive cost" and the issue of the guidance was not in the public interest. The Court of Appeal dismissed the appeal. In employing the phrase used in the guidance, the Secretary of State had not intended to impose a test different to that used in the statutory phrase. The expression meant that it would not be a breach of the odour boundary condition if the operator could show that he had employed BATNEEC and the failure to use the phrase BATNEEC had not made the guidance illegal. Further, the imposition of the condition was manifestly desirable unless the effect would be to make it so difficult or expensive to operate rendering plants that they could not continue to exist in appropriate places. On the evidence, this was not the case and there was accordingly nothing legally objectionable either in the imposition of a qualified odour boundary condition by local authorities or in the Secretary of State advising them to do so in the generality of cases.
(United Kingdom Renderers Association Ltd and Another v Secretary of State for the Environment, Transport and the Regions, [2002]All ER (D) 362 (May))

Water pollution

United Utilities Water plc was fined a total of £203,000 during April 2002 after pleading guilty to breaching the conditions of discharge consents at four wastewater treatment works in the North West of England, an offence under section 85(6) of the Water Resources Act 1991. The company failed to irradiate sewage to reduce the micro-organism content of final effluent to enable compliance with bathing water and shellfish water quality standards. It also failed to monitor the UV treatment properly. Fines of between £15,000-£19,000 were imposed for each of twelve offences. Costs of nearly £7,000 were also awarded against the company.
(Environment Agency News Releases, 11,19,24 and 29 April 2002)

Groundwater and a stream were polluted with up to 10,000 litres of fuel stored at a TotalFinaElf UK Ltd service station. The company pleaded guilty to three offences of water pollution under section 85 of the Water Resources Act 1991 and received a fine of £18,000 for each, plus costs of £4,103. The service station involved has been closed for a clean up operation expected to cost more than £70,000.
(Environment Agency News Release, 29 April 2002)

Statutory nuisance

Following the service of a noise abatement notice under section 80 of the Environmental Protection Act 1990, Lewisham LBC alleged that this notice had been breached twice and brought a prosecution against the respondent. Council officers visiting the premises had heard loud music considered to be a nuisance although on the second occasion, this was a marginal decision. In court, the justices refused to convict because no reliable acoustic measurements were provided in evidence and they could not be satisfied to the criminal standard that the music had amounted to a nuisance. Lewisham LBC appealed. The High Court held that reliable evidence of acoustic measurement was not a pre-condition for a conviction under section 80 of the 1990 Act and that the justices had been wrong to refuse to convict the defendant on that basis. As this had been the only apparent reason for acquitting the defendant of the first charge, this information was remitted to the justices with a direction to convict. A different conclusion was reached regarding the second charge: as the officer's decision concerning the existence of the noise nuisance had been marginal, the justices were entitled to find that they could not be satisfied in the absence of acoustic measurement that the noise amounted to a nuisance.
(Lewisham London Borough Council v Hall, [2002] All ER (D) 83 (May))

Conservation and human rights

Aggregate Industries UK Ltd purchased a site in Hampshire with planning permission for minerals extraction and a tree felling licence which it considered to have development potential. 18 months after this, English Nature confirmed the notification of the land as a site of special scientific interest (SSSI) under section 28 of the Wildlife and Countryside Act 1981 on the ground that the site was a special protection area (SPA) for birds under the EU Birds Directive (79/409/EEC). Aggregate Industries applied for judicial review, claiming inter alia that English Nature's decision had breached its rights under article 6 of the European Convention on Human Rights (ECHR) (which requires that a person should have the opportunity of having their civil rights and obligations determined by an independent and impartial tribunal). The decision was also in breach of its legitimate expectations: English Nature had previously refused SSSI status for the site and this had led to a legitimate expectation that the policy on that occasion would bind all subsequent decisions on that land unless there was a relevant change in circumstances or new information (instead it was the decision to begin to notify temporary habitats that led to the new notification). The High Court found that article 6 of the ECHR was engaged in relation to the notification and confirmation of the SSSI by English Nature as this was an outcome that was directly decisive of Aggregate Industries' civil rights in that it restricted the company's use of its property. English Nature did not constitute an independent and impartial tribunal as it had both notified and confirmed the SSSI but the organisation's procedures and the safeguards contained in section 28 of the 1981 Act, taken together with the High Court's powers of judicial review, meant that the determination of Aggregate Industries' civil rights of property in the site had complied with article 6. On the issue of the company's legitimate expectation, this could only be that English Nature would properly fulfil its statutory duty under section 28 of the 1981 Act. Any legitimate expectation must yield to the terms of any statute and English Nature could not fail to discharge its statutory function.
(R (on the application of Aggregate Industries UK Ltd) v English Nature and Another, NLD 20233026, 24 April 2002)

Land drainage works

Monmouthshire County Council wished to build a drainage channel to alleviate a flooding problem and allow the construction of a residential development. This required work to be carried out on the claimant's land and a notice of intended entry was served in accordance with section 64 of the Land Drainage Act 1991. The claimant objected to the proposed works and applied for judicial review but the works were carried out before the substantive hearing. The claimant argued that the Council had no power of entry to its land under section 64 of the 1991 Act and that if this was not the case, the Council's actions were a disproportionate interference with the company's property and infringed its human rights under article 1 of the First Protocol to the European Convention on Human Rights (ECHR) (right to peaceful enjoyment of possessions). Its human rights under article 6 of the ECHR which requires that a person should have the opportunity of having their civil rights and obligations determined by an independent and impartial tribunal had also been breached. The High Court ruled that section 64 of the 1991 Act did provide an authorised person with an independent right of entry to land for the purpose of exercising land drainage functions, including the construction of new drainage works. This interpretation of section 64 was consistent with other provisions of the Act (sections 14, 18 and 62) concerning powers of entry and did not render them otiose. Section 14 conferred a power of entry without notice for the limited purpose of maintaining existing works. Any power of entry for improving existing works or constructing new works was excluded under section 14 and works of this type would have to follow the more onerous section 64 procedures. There had been no breach of article 6 of the ECHR and the claimant's rights under article 1 of the First Protocol had not been breached: on the evidence, the Court found that the construction of the drainage channel had not interfered with the claimant's enjoyment of its land to any great extent and that compensation was payable under the 1991 Act. It was a relatively limited and beneficial proposal and the Council's interference had been justified. The application was dismissed.
(R (on the application of MWH and H Ward Estates Ltd) v Monmouthshire County Council, [2002] All ER (D) 272 (Feb))

Asbestos

Details of the House of Lords' judgment in Matthews v Associated Portland Cement Manufacturers (1978) Ltd and Others; Fox v Spousal (Midlands) Ltd; Fairchild v Glenhaven Funeral Services Ltd and Others can be found in the articles section of this Bulletin.

COMAH

General Trading Services Ltd, trading as King's Lynn Bagging and Handling, failed to notify that it was storing and handling large quantities of ammonium nitrate fertiliser, a requirement of The Control of Major Accident Hazards Regulations 1999 and was fined £1,200 in a prosecution brought by the HSE. Regulation 6(2) of the 1999 Regulations requires that the HSE and the Environment Agency are notified of such activities prior to their commencement to allow hazards to be evaluated and managed. The company, which pleased guilty to the charges, held more than 2,500 tonnes of fertiliser at its premises when the threshold for the application of the COMAH Regulations was 1,250 tonnes.
(HSE News Release, 22 April 2002)

Health and safety

After a fatal accident involving a machine made by the Finnish company, Junttan Oy, charges were brought by the HSE under sections 3 (duties to non-employees) and 6 (duties of manufacturers) of the Health and Safety at Work etc. Act 1974, contending that the manufacturer's employees had been aware of the potential for such an accident as a similar incident had occurred during the training of the purchaser's employees and that the machine had not been designed and manufactured in accordance with appropriate safety standards. A preliminary issue arose concerning whether the prosecution was unlawful because the HSE had failed to follow a procedure established by EU Directive 98/37/EC on machinery or because the prosecution should have been under The Supply of Machinery (Safety) Regulations 1992 (which implement EU legislation on this subject). The district judge held that the prosecution was not unlawful: article 7 of the Directive was not applicable in this case and as the HSE had discretion to proceed under either the 1974 Act or the 1992 Regulations, it was not an abuse of process to proceed under the Act. Junttan Oy's application for judicial review of this decision was allowed in part. The High Court agreed that article 7 of the Directive was not relevant to enforcement action such as criminal proceedings. Instead, it dealt with situations where member states considered that items of machinery could endanger safety and, in this case, the machinery had been modified since the accident and was no longer likely to be dangerous. Considering the HSE's decision to bring proceedings under sections 3 and 6 of the 1974 Act, the Court held that as section 6 gave rise to an offence in circumstances identical to a specific offence under the 1992 Regulations, it was unlawful for the HSE to indict under section 6 rather than proceeding with a summary offence under the 1992 Regulations. A prosecution under section 3 of the Act would not be unlawful however as there was no parallel offence under the Regulations. A declaration would be granted that prosecution under section 6 was unlawful.
(R (on the application of Junttan Oy) v Bristol Magistrates' Court, All ER (D) 274 (Mar))

Two men died when a tunnel they were demolishing collapsed on top of them. Their employer, Brian Dean, of Brian Dean Builders and Civil Engineers, was jailed for 18 months after being found guilty of their manslaughter. Mr Dean was also charged with failing to provide a safe system of work and failing to provide information, instruction, training and supervision to ensure the health and safety of the men, contrary to the Health and Safety at Work etc. Act 1974. A further charge under section 2(1) of the 1974 Act was not pursued because of the successful conviction for manslaughter.
(HSE News Release, 24 May 2002)

Gas safety

A gas fitter who breached a prohibition notice banning him from working until he became CORGI registered and competent was jailed for four months after being prosecuted under section 33(1) of the Health and Safety at Work etc. Act 1974. Mark Towle was also charged with carrying out work whilst not a member of CORGI and falsely pretending to be registered contrary to The Gas Safety (Installation and Use) Regulations 1998. This is the first time that a gas fitter has been sent to prison for working without being legally registered.
(HSE News Release, 9 May 2002)

Psychiatric injury

Mr Young, a Post Office manager, took sick leave because of work related stress. He returned to work voluntarily and was told by his superiors that arrangements would be made to facilitate his return to work and that his state of health would be monitored. Soon after returning however, he attended a training course that he found particularly stressful and was then required to take on his old job because of holiday leave and other work commitments. A second breakdown meant that he ceased work permanently. In his successful action in negligence against the Post Office, the court found that whilst the first breakdown had not been foreseeable, his employer had known of the need to monitor Mr Young's health after his return to work and had not properly implemented the programme set up to do so. On appeal to the Court of Appeal, the Post Office argued inter alia that it had not breached its duty of care and that Mr Young had been contributorily negligent by not raising his concerns or taking advantage of the offer allowing him to work as he pleased. These arguments were dismissed by the Court which held that it was reasonably foreseeable that Mr Young would have been vulnerable to stress after his return and that his employer had owed him a duty of care during that period. There was some force to the employer's argument that it had not breached that duty because of the specific arrangements created for Mr Young but the judge had been entitled to find that in failing to implement these arrangements the company had been in breach. It had also been open to the judge to find that Mr Young had not been contributorily negligent: he was a vulnerable person who had not been in a position to gauge his own strength and it would be a very rare case in which such an employee would have to bear responsibility for the fact that his employer had not kept its promises. The Post Office's appeal was dismissed.
(Young v Post Office, NLD 20240176, 30 April 2002)

Proceedings against Argyll and Bute Council claiming psychiatric injury were brought by a former employee who had had an unusually heavy workload and suffered a mental breakdown. The Court of Session (Outer House) dismissed the claim, finding that although the Council had not supervised the employee's workload properly, there was nothing about his illness record to alert the Council that work was having an adverse effect on his health. Neither had the employee disclosed any problem to his employer. It was not possible to find anything that suggested that psychiatric injury would result which should have been identified by the Council under proper supervision. The injury was not reasonably foreseeable by the Council and it had not breached its duty of care. The employee's claim was dismissed.
(Green v Argyll and Bute Council, NLD 20246978, 7 May 2002)

Planning

In September 1999, Hammersmith and Fulham LBC resolved that planning permission should be granted for a development subject to the fulfilment of certain conditions These conditions were met and planning permission granted in May 2000. Between these dates, in April 2000, local residents sought leave to apply for judicial review of the September 1999 resolution on the grounds that the developer's environmental statement was inadequate. Their application was refused by the High Court and the Court of Appeal, primarily because it had been made outside the three months time limit imposed by the Rules of the Supreme Court (now the Civil Procedure Rules). Hearing the residents' appeal, the House of Lords held that the challenge should not be rejected because it was directed solely at the resolution. In public law, the emphasis should be on substance rather than form and to dismiss the appeal would be unjust. Any procedural difficulty could be cured by an amendment directed to the grant of planning permission in May 2000. In planning cases, the wording in the Rules that the three months time limit should be calculated from "when the grounds for the application first arose" referred to the date when planning permission was granted and not the date of any preliminary decisions. The Court did have jurisdiction to consider an application for judicial review in respect of the resolution but it was wrong to hold that the person applying for such relief would do so on pain of losing his right to judicial review of the actual grant of planning permission. The proposition in R v Secretary of State for Trade and Industry ex parte Greenpeace Ltd that an applicant for judicial review must move against the substantive act or decision which is the real basis of his complaint was overruled as this left the moment at which time started to run uncertain. The residents' appeal was allowed and the case remitted to the High Court for a hearing on the merits.
(R (on the application of Burkett and Another) v Hammersmith and Fulham London Borough Council and Others), [2002] 22 EG 136 (CS))

European Union

Definition of waste

A provisional environment licence was granted to the Finnish company Palin Granit Oy by a municipal authority for the operation of a quarry, including the storage on an adjoining site of leftover stone that could be used in the future as gravel or filling material. This decision was challenged by the regional environment centre which claimed that the leftover stone was waste and the storage site should be licensed by it as a landfill. Palin Granit Oy and the municipal authority appealed, arguing that this was not landfilling but short term storage of materials for subsequent use without any need for recovery measures and that the activity posed no risk to humans or the environment. In return, the regional environment centre claimed that the leftover stone should be considered as waste as long as evidence of its reuse was not provided. The Finnish Supreme Administrative Court referred the case to the European Court of Justice, requesting answers to two main questions: (i) whether leftover stone from quarrying was to be regarded as waste under article 1(a) of the Waste Framework Directive (75/442/EEC, as amended by 91/156/EEC); and (ii) whether the place of storage of the leftover stone, its composition and the fact that it did not pose any real risk to human health or the environment were relevant criteria for determining whether the stone was waste. Under article 1(a) of the Directive, waste is "any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard". ECJ case law has established that the scope of "waste" turns on the meaning of the term "discard", which in turn must be considered in the light of the aims of the Directive. The concept of waste must be interpreted widely in order to limit its inherent risks and pollution. Materials undergoing the disposal or treatment operations listed in Annex II A and B to the Directive have not necessarily been discarded however and need not always be waste, whilst the concept of waste does not exclude materials capable of economic re-utilisation. The question of whether any particular material is waste must therefore take into account all the relevant circumstances. In this case, the ECJ ruled that the holder of leftover stone resulting from stone quarrying stored for an indefinite length of time to await possible use had discarded or intended to discard that stone and that the material was therefore waste under the Directive. Two criteria were particularly relevant in reaching this decision. Firstly, the stone constituted a production residue coming within category Q11 of Annex I to the Directive ("residues from raw materials extraction and processing") as it was not the primary product of the quarry. Secondly, there was a relatively low degree of likelihood that the stone would be reused without further processing – reuse was not certain and was only foreseeable in the longer term. The company's argument that the leftover stone should be regarded as a by product was rejected by the ECJ which concluded that if the concept of waste is interpreted widely, a by product should only be held not to be waste where its reuse is not a mere possibility but a certainty without any further processing prior to reuse and as an integral part of the production process. The likelihood of reuse would be particularly high where there is also a financial advantage to the holder and in such circumstances a material should not be regarded as a burden which its holder seeks to discard but a genuine product. In this case, the stone was not a by product but rather a production residue the company intended to discard. The place of storage, its composition and the fact that, even if proven, there was no risk to humans or the environment, were not found to be relevant criteria for determining whether the stone was waste. (Palin Granit Oy v Vehmassalon kansanterveystyön kuntayhtymän hallitus.
(ECJ Case C-9/00, 18 April 2002)