Environment law update: A selection of recent cases in environment and health & safety law

United Kingdom

United Kingdom

Waste – prison sentences

Timothy Phillips was given a two month custodial sentence after pleading guilty to four offences of keeping, treating and depositing waste tyres without a waste management licence at three sites in Suffolk and Norfolk. Mr Phillip’s business partner, Ann Cummins, was given a three year conditional discharge after admitting three offences, also under section 33 of the Environmental Protection Act 1990. Approximately 1 million tyres are still stockpiled at one of the sites.
(Environment Agency News Release, 25 October 2002)

A four month jail sentence was imposed on the owner of a Leicestershire skip hire firm after he admitted nine charges of keeping, treating and depositing waste on land without a waste management licence contrary to section 33 of the Environmental Protection Act 1990. Darryl Taylor was repeatedly advised by the Environment Agency that the activities at his premises required a licence. He had been sentenced to 120 hours community service for a similar offence in 1998.
(Environment Agency News Release, 4 November 2002)

Keeping, treating and depositing waste on his land without a waste management licence led to the prosecution of Kevin Kennell for thirteen offences under section 33 of the Environmental Protection Act 1990. Mr Kennell, who operated a skip hire business, was sentenced to eight months imprisonment and was also disqualified from acting as a director for three years. He pleaded guilty to the charges.
(Environment Agency News Release, 18 October 2002)

A man was sent to prison for one year and disqualified from acting as a director for ten years after pleading guilty to six charges of depositing waste on land without a waste management licence contrary to section 33 of the Environmental Protection Act 1990. John Bruce and his company Ivory Plant Hire Ltd arranged for and undertook the illegal tipping of waste and then lied to Environment Agency officers and forged documents in an attempt to cover up. A business associate, Ann Gartlan, was sentenced to 120 hours of community service and disqualified from acting as a director for five years after admitting one offence under section 33 of the 1990 Act. She was also ordered to pay a contribution to costs of £20,000.
(Environment Agency News Release, 2 October 2002)

Clinical waste

Torgam Developments Ltd was fined £30,000 with £7,180 costs after pleading guilty to two charges brought by the Environment Agency under section 33 of the Environmental Protection Act 1990. A wide variety of clinical waste was collected by the company from hospitals and stored at its premises in Rotherham. The waste was to be sent for incineration but unforeseen problems in finding clinical waste incineration space meant that it was illegally stored and deposited without a waste management licence. The company’s director had previously been warned by the Agency that a licence would be required for the storage of such waste.
(Environment Agency News Release, 6 November 2002)

Waste management licensing

R Newcomb & Sons Ltd and its managing director were prosecuted by the Environment Agency for knowingly causing controlled waste to be deposited at the company’s site without a waste management licence, an offence under section 33 of the Environmental Protection Act 1990. The site in question had been purchased to construct recreational facilities. R Newcomb & Son Ltd’s business involved skip hire and various waste treatment and disposal activities. The Agency had advised the company by letter that an exemption from waste management licensing (regulation 17 and schedule 3 to The Waste Management Licensing Regulations 1994) would only be permitted if 95% or more of the waste accepted at the site was used to produce aggregates for the company’s block making plant and for the foundations of the recreational facilities. No biodegradable waste should be accepted. Action was taken by the Agency after it noticed that biodegradable waste was being deposited at the site in addition to the inert waste. The charges related to specific deposits made on particular dates. R Newcomb & Sons Ltd and its director were acquitted however, the Magistrates’ Court concluding that the waste subject to the charges was a tiny fraction compared to the average amount of inert material deposited at the site each month. Although waste had been deposited that fell outside the exemption, this was within the 5% working tolerance which the company had been led to believe was acceptable. On the evidence, it was found that the Agency had not proved the offences beyond reasonable doubt. The Agency’s appeal was allowed by the High Court. Firstly, it was held that as each of the charges had been laid in connection with a specific deposit, the conduct to be considered in the criminal proceedings was the making of each deposit. The volumetric proportion between the deposit and the total waste at the site was completely irrelevant. Although the Agency’s letter referred to a 5% tolerance, the legislation creating the exemption contained no reference to any latitude or tolerance and the Magistrates had been wrong to use that written advice as an aid to construction. This advice was not entirely irrelevant however, as it could have been relied on in mitigation after conviction or might have enabled an application to have been made to stay the prosecution on the grounds that it was an abuse of process. Secondly, the judge held that in a case such as this where it was alleged that there had been a prohibited deposit falling outside an exemption, it was for the prosecution to prove the facts which took the deposit outside that exemption and rendered it a prohibited deposit. The Agency had to prove that the deposit contained waste not suitable for the exempted purpose of being used for recreational purposes. It was not for the respondents to show on the balance of probabilities that the deposits were in relation to the carrying on of an exempt activity.
(Environment Agency v R Newcomb & Sons Ltd and Another, [2002] EWHC 2095 (Admin), 16 October 2002)

Incineration

Local residents objecting to the construction of an energy from waste plant applied for judicial review of Surrey County Council’s decision to grant planning permission for the incinerator and refuse applications for two plants at other locations. This decision took a number of factors into consideration, including that the approved site was a landfill site and therefore “land with an existing waste use” under the Waste Local Plan and that the proposal was in accordance with the proximity principle described at regional (i.e. county) level. This principle, derived from EU Directive 75/442/EEC on waste and reflected in The Waste Management Licensing Regulations 1994, requires that disposal networks should enable waste to be disposed of in one of the nearest appropriate installations. In their application to the High Court, the residents argued that the Council had applied the relevant policies of the Waste Local Plan incorrectly in that “land with an existing waste use” was distinct from “operational landfill sites”. It had also misapplied the proximity principle as the approved site was located far from the creation of the waste. Finally, the Council had not taken into account a relevant consideration, the Secretary of State’s determination in relation to another site. The High Court agreed that the Council had applied its policies concerning the definition of waste usage incorrectly and that a landfill site was not considered waste usage. The Council was also obliged to apply the proximity principle below county level and compare the approved site with the two other sites under consideration. The Secretary of State’s determination was a material consideration that should have been taken into account when making the decision. The application for judicial review was allowed.
(R (on the application of McCall and Others) v Surrey County Council, [2002] All ER (D) 139 (Nov))

Landfill tax

A local authority paid a company, Recycling, to dispose of unwanted material from highway works. The material was crushed, sorted and mixed with other material before being separated into saleable material and material sent to landfill because it had no use. Some of the saleable material (aggregates and fines) was sold by Recycling to Parkwood Landfill Ltd which used it for road making and landscaping at landfill sites. Parkwood denied that it was liable for landfill tax on the recycled material deposited at its sites because that material was not waste, having been disposed of by Recycling, a view contrary to that of the Commissioners of Customs and Excise which argued that Parkwood was liable because the material had been discarded as waste by the local authority. Under section 40(2) of Part III of the Finance Act 1996, a disposal at a landfill site is a taxable disposal if “(a) it is a disposal of material as waste, (b) it is made by way of landfill, (c) it is made at a landfill site, and (d) it is made on or after 1st October 1996”. The Commissioners argued that whilst the disposal by the local authority did not meet the conditions of sub-sections 40(2)(b) or (c), it was not necessary for the same disposal to fulfil all the conditions, these being satisfied when the material was disposed of at Parkwood’s landfill sites. Parkwood’s appeal to the VAT and Duties Tribunal was successful but the Commissioners’ subsequent appeal was allowed, the High Court ruling that section 40(2) (a)-(d) was satisfied because there had been a disposal by Parkwood by way of landfill of material that had been disposed of by the local authority as waste. It was held that a disposal might be made in more than one place, at more than one time and by more than one legal transaction. Parkwood’s appeal to the Court of Appeal was successful. The difference between the parties turned on whether section 40(2) required the taxable disposal to satisfy all the conditions of the sub-sections. The Court of Appeal held that a consideration of the 1996 Act should take into account its overall purpose, that is to reduce landfilling and promote recycling. Taxation of recycled material used for landscaping at landfill sites would be contrary to that objective. The natural meaning of section 40(2) was that a disposal should fulfil all of the conditions of sub-sections 40(2)(a)-(d) at the same time, that is that tax should be paid only where there was a disposal of material as waste by way of landfill at a landfill site after 1 October 1996. The Commissioners’ interpretation would mean that once there had been a disposal of material as waste by someone, tax would be payable by the site operator if the material was deposited on the ground in a landfill site. Therefore, liability to pay tax would depend on the intention of a person unknown to the site operator at an unknown time. Parliament could not have intended to impose a landfill tax on recycled material with the necessity that the history of the material had to be checked to ascertain whether anybody had disposed of it as waste. The VAT Tribunal was correct to hold that Parkwood’s use of the recycled material was not a disposal as waste and therefore not a taxable disposal.
(Parkwood Landfill Ltd v Commissioners of Customs and Excise, [2002] EWCA Civ 1707, 28 November 2002)

Packaging waste

A total fine of £53,000, one of the largest penalties imposed to date under The Producer Responsibility Obligations (Packaging Waste) Regulations 1997, was imposed on independent banana ripeners S H Pratt & Co. The company pleaded guilty to failing to register with the Environment Agency and failing to recover and recycle more than 4,000 tonnes of packaging waste. A saving of over £50,000 was made through this non-compliance. Costs of £1,920 were also awarded against the company.
(Environment Agency News Release, 19 November 2002)

Failing to comply with the requirements of The Producer Responsibility Obligations (Packaging Waste) Regulations 1997 in the period 1998-2000 led to the prosecution of Jackson Building Centres Ltd. The company pleaded guilty to failing to register with the Environment Agency or a compliance scheme, failing to take reasonable steps to recover and recycle packaging waste and failing to furnish the Agency with a certificate of compliance. A £2,500 fine was imposed for each of the nine offences, a total of £22,500, plus costs of £1,165.
(Environment Agency News Release, 11 October 2002)

Pollution from demolition

Huge court costs of £29,000 and a community service sentence were imposed on a Bradford demolition contractor in connection with two separate pollution incidents. William Reidy pleaded guilty to one offence under section 85 of the Water Resources Act 1991 after a toxic and endocrine disrupting detergent escaped from tanks located in a building that his company was demolishing and ran into a nearby stream. He received 80 hours community punishment for this offence and 120 hours more in a second case in which he was found guilty of two waste offences under section 33 of the Environmental Protection Act 1990. Waste from his company was dumped illegally and burnt as a bonfire, despite Environment Agency advice that the waste should not be disposed of in that way.
(Environment Agency News Release, 13 December 2002)

Water pollution

BP Oil UK Ltd was fined a total of £60,000 for five offences of causing unleaded petrol to enter groundwater contrary to section 85 of the Water Resources Act 1991. The company, which pleaded guilty to the charges, was also ordered to pay £11,035 in costs. Almost 40,000 litres of petrol leaked through a hole in a fuel tank at a BP service station in Luton situated close the town’s main drinking water abstraction point. BP is funding an extensive remediation and monitoring programme that will have to continue for many years to ensure that the supply is protected.
(Environment Agency News Release, 18 October 2002)

Four fines of £20,000, the maximum available in a Magistrates’ Court, were imposed on Anglian Water Services Ltd during October and November 2002 following prosecutions by the Environment Agency for breaches of section 85 of the Water Resources Act 1991. The water and sewerage undertaker pleaded guilty to knowingly permitting crude sewage to enter a stream from a sewage pumping station in Hitchin and contravening the conditions of a discharge consent authorising the operation of an emergency outflow at the pumping station. Although three alarms were installed at the station to warn of the operation of the emergency overflow, one was not working, another was faulty and the alert given by the third was not acted on quickly, allowing sewage to discharge for five days. A £20,000 fine was imposed for each offence and costs of £3,945 were also awarded against the company. The two other £20,000 fines plus costs totalling more than £4,506 were imposed in separate prosecutions after the company admitted causing sewage effluent to enter controlled waters. Crude sewage entered the Grand Union Canal via an unconsented storm water overflow from an Anglian Water treatment works. The Agency had a policy of refusing storm discharges into that part of the Canal because of its poor water quality. Anglian Water had identified the overflow in 1998 but had not taken action to remedy the problem. In the third case, the closure of a valve at a treatment works in Southend on Sea caused sewage to back up and overflow into the Prittle Brook.
(Environment Agency News Releases, 3 October, 4 November, 26 November 2002)

United Utilities Water plc pleaded guilty to six offences of breaching the conditions of its discharge consent contrary to section 85 of the Water Resources Act 1991 and asked for 13 further offences to be taken into consideration. It was fined a total of £57,000 plus costs of £3,740. Discharge consent conditions concerning the chemical oxygen demand and biological oxygen demand of effluent were regularly breached at the company’s Sandon Dock sewage treatment works which discharges into the River Mersey.
(Environment Agency News Release, 8 November 2002)

Pollution indemnity agreement

In 1994, the House of Lords held that Eastern Counties Leather Group Ltd (the defendant) was not liable at common law for the pollution of groundwater with PCE, a chemical used in its tannery business [1994] 2 WLR 53. Exposure to statutory claims under water quality legislation remained however. Eastern Counties Leather plc (the claimant) was to be protected from such claims under a pollution indemnity agreement drawn up when control of the business passed to it from Eastern Counties Leather Group Ltd. In 1999, the Environment Agency invoiced the claimant for the cost of assessing remediation works at the site and the claimant began proceedings to determine whether it could be indemnified by the defendant under the agreement. The High Court held that the claimant had established its right to be indemnified against the pollution claim and the defendant appealed, arguing that a condition precedent to the defendant’s liability contained in clause 4.2 of the agreement had not been fulfilled by reason of the claimant’s non-compliance with clause 4.1. Under clause 4.1 of the agreement, the claimant was to carry out works as required by the National Rivers Authority (“NRA”) (the Environment Agency’s predecessor) and to ensure that water was pumped from boreholes in accordance with the Agency’s requirements but not otherwise. Clause 4.2 provided that the indemnity was conditional on the claimant’s compliance with clause 4.1 but for the avoidance of doubt, the claimant should not be regarded as being in breach of that clause by reason only that the pumping operations at the relevant time had not achieved a reduction in PCE to the levels mentioned in the “letters”. These letters were correspondence between the claimant’s solicitors and the NRA and a memorandum of understanding indicating that the claimant would extract water up to the amount allowed by the existing effluent discharge agreement. In the Court of Appeal, the defendant contended that the agreement required water to be pumped at the maximum level permitted by abstraction licences and that the claimant had not pumped at this level. The Court disagreed: the memorandum of understanding placed a ceiling on the claimant’s obligation to pump water rather than defining the amount to be pumped. The claimant was obliged to take remedial steps and to pump water as required by the NRA, but only once the NRA had communicated its requirements or complained about the claimant’s actions. There had been no breach and the claimant was entitled to be indemnified by the defendant under the terms of the agreement. The appeal was dismissed.
(Eastern Counties Leather plc v Eastern Counties Leather Group Ltd, [2002] All ER (D) 449 (Oct))

Water supply

Under section 146(2) of the Water Industry Act 1991, statutory water and sewerage undertakers may levy connection charges on premises not previously connected to the domestic water supply and public sewer. After Hampstead Homes (London) Ltd converted two office blocks into 109 separate flats, Thames Water Utilities Ltd claimed in respect of connection charges to each flat. Hampstead Homes successfully contested this, arguing that as each of the office blocks had previously been connected for domestic purposes to the water supply and public sewer, no charge should be levied. Thames Water appealed, arguing that the meaning of the word “premises” in section 146(2) had been misinterpreted by the judge. The Court of Appeal allowed the appeal. “Premises” was an ordinary word not defined in the Water Industry Act 1991 and the term was used in various ways throughout the Act. Its precise meaning had to be derived from its context, in this case the connection of water and sewerage services. The purpose of the powers provided to water and sewerage undertakers under section 146(2) was to enable some of the cost of the additional burden placed on the system by new premises to be recovered. This would apply to new housing developments on formerly unoccupied land but probably not to modest alterations to existing houses which did not constitute the building of new premises. It was a question of fact and degree whether a conversion to an existing building would result in or include the construction and connection of premises not previously connected or whether the conversion would retain the identity of the previously connected premises. In this case, the 109 flats were new premises not previously connected and Thames Water was entitled to levy a connection charge under section 146(2).
(Thames Water Utilities Ltd v Hampstead Homes (London) Ltd, [2002] EWCA Civ 1487, 8 October 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, arguing inter alia that the Council had no power of entry to its land under that section. The High Court ruled however that section 64 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. The claimant appealed, arguing that section 64 effectively permitted the compulsory acquisition of easement rights over land without the provision of compensation or the right to challenge the need for the proposed scheme, thereby infringing the claimant’s human rights under article 1 of the First Protocol to the European Convention on Human Rights (“ECHR”) (right to peaceful enjoyment of possessions) and article 6 of the ECHR (right to have the opportunity of having civil rights and obligations determined by an independent and impartial tribunal). This appeal was dismissed by the Court of Appeal which held that the High Court judge had been correct to refuse the application for judicial review and that section 64 of the 1991 Act did confer a right of entry to the Council. There had been no breach of the claimant’s human rights: the compensation arrangements under section 14 of the 1991 Act meant there was no breach of article 1 of the First Protocol to the ECHR and article 6 of the ECHR was satisfied by the availability of judicial review. On the facts, the Council’s actions in this case had not been disproportionate.
(R (on the application of MWH and H Ward Estates Ltd) v Monmouthshire County Council, [2002] All ER (D) 463 (Oct))

Manual handling

A nurse suffered from a catalogue of serious medical problems caused by damage to her spine for which she required surgery and ongoing medical treatment. As part of her employment with Newham Healthcare National Health Service Trust she had often been required to manually lift patients. Suitable lifting equipment was not readily available and the “drag lift” method of moving patients was frequently used, despite this having been criticised in government publications. After complaining of back ache, she slipped in the bath and suffered severe damage to two intervertebral discs and neural damage which led to the other medical problems. In an action against her employer, it was alleged that the Trust had breached its statutory duty under The Manual Handling Operations Regulations 1992. Regulation 4 of the 1992 Regulations requires that if it is not reasonably practicable to avoid the need for employees to undertake any manual handling operations which involve a risk of injury, the employer should assess such operations and take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. The High Court found that the Heathcare Trust had not carried out a risk assessment and did not operate an appropriate system for lifting patients. No real steps had been taken to reduce the risk of injury to employees to the lowest level reasonably practicable. There had therefore been no adequate response to the 1992 Regulations. It was likely that the lifting of patients during her employment had damaged the claimant’s back and also weakened it, increasing the likelihood of a disc protrusion and further injury. The spinal and neural injury was the eventual result of that process. The defendant’s breach of duty had caused the claimant’s injury. General damages were awarded for pain, suffering and loss of amenity, plus a sum for loss of congenial employment.
(Knott v Newham Healthcare National Health Service Trust, [2002] EWHC 2091(QB), 16 October 2002)

COSHH

The claimant, a nurse, was atopic and had suffered from eczema and asthma since childhood. During her employment at the Singleton Hospital and by 1995 at the latest she developed a Type I allergy to latex protein as a result of using powdered latex gloves in connection with her work. After a serious allergic reaction, she was supplied with vinyl gloves. In January 1997, she transferred to the Morriston Hospital and informed the occupational health department of her allergy. Vinyl gloves were again supplied but her sensitivity was such that in December 1997 she suffered an anaphylactic attack after picking up an empty box which had contained latex gloves. She was unable to return to nursing. Proceedings were brought against her employers, alleging negligence and breach of The Control of Substances Hazardous to Health Regulations 1988 and 1994. Her claim was dismissed. The Court of Appeal allowed her appeal in part. The Court confirmed that on the evidence it was difficult to conclude that the defendants should have known before 1996 of the sensitisation risk associated with latex gloves against which action should have been taken for the purposes of the law of negligence. This was despite the fact that healthcare employers might well be expected to take action on such risks before official guidance was produced. Regarding the breach of The COSHH Regulations, the Court held that the employer’s duty under regulation 7(1) to prevent or, where this is not reasonably practicable, adequately control exposure to substances hazardous to health was absolute. The defence of reasonable practicability qualified only the duty of total prevention. In this case, the Singleton Hospital had to prove that it was not reasonably practicable to replace latex gloves with vinyl gloves. With a simple step like this, questions of the degree and magnitude of the risk did not arise. The onus was on the employer to find out about risks and, in this case, the material was there from which an employer with the absolute duty of preventing exposure to health hazards could have discovered what needed to be done. Regarding adequate control, “adequately” was defined without reference to reasonableness or the foreseeability of risk, it was a purely a practical matter depending only on the nature of the substance and the nature and degree of the exposure. Obliging an employee to wear latex gloves when other barriers were available was not adequate control. The COSHH Regulations were protective and preventative, involving positive obligations to seek out risks and take precautions. An employer who failed to discover a risk or rated a risk so low that that no precautions were taken against it should be liable to the employee who suffered as a result. The Singleton Hospital was liable to the claimant for breach of The COSHH Regulations. The Morriston Hospital was not negligent.
(Dugmore v Swansea NHS Trust and Another, [2002] EWCA Civ 1689, 21 November 2002)

Work at heights

During an argument at work, the scaffolding tower on which the claimant was standing was deliberately pushed, causing it to topple over. The claimant fell from the tower and was seriously injured. He issued proceedings against his employer, Taplin Contracts Ltd, alleging that the company had breached its statutory duty under regulations 5 and 20 of The Provision and Use of Work Equipment Regulations 1992 requiring that work equipment be suitable for its purpose and equipment be stabilised for the purposes of health and safety, and regulation 5(2) of The Construction (Health, Safety and Welfare) Regulations 1996 requiring that every place of work be made and kept safe for employees so far as reasonably practicable. At the time of the incident, only two sides of the tower had guard rails and there were no stabilisers at the base. The claim was dismissed, the judge ruling that there had been no breach of duty and that even if there had been, it was not the cause of the accident because the employer could not have reasonably foreseen the violent action by the other worker. The claimant appealed. The Court of Appeal held that there had been no breach of statutory duty. The concepts of safety and risk involve a consideration of what is reasonably foreseeable. On the evidence, the tower had been a safe place of work and had only become unsafe because it was pushed unexpectedly. Moreover, the chain of causation had been broken by the employee’s deliberate, unpredictable and violent action which was sufficient to constitute a new intervening act. Thus, even if there had been a breach of statutory duty which had some causative role in the accident, there was no logical reason why the new intervening act should not be a defence. The appeal was dismissed.
(Horton v Taplin Contracts Ltd, Times Law Reports, 25 November 2002)

Mr O’Connor, a painter and decorator, was injured at work whilst working on a scaffold tower. Although he was unable to recall the accident due to amnesia, another employee reported having seen him falling from the tower. Mr O’Connor brought an action for damages against his employer and a company to which it was contracted. No instructions on the use of the scaffold tower had been given to the claimant by his employer and the tower, which had been constructed by an employee of the second defendant, was found by a heath and safety inspector to be lacking guard rails and toe boards. Mr O’Connor admitted being aware of the dangerous condition of the tower. At a trial of liability, the High Court found that it was most probable that Mr O’Connor had been injured by a fall from the scaffold tower. Both defendants had been negligent and breached their statutory duty as the tower had been dangerous. They were however only 80% liable for the accident as Mr O’Connor had also owed himself a duty of care and although he was not responsible for the dangerousness of the tower, he had knowingly put himself in a dangerous situation and contributed to the accident.
(O’Connor v DN Décor (a Firm) and Another, [2002] All ER (D) 467 (Oct))

Personal injury proceedings against the three defendants were brought by Mr McCook who fell from a ladder which was unfooted and unsecured. Mr McCook’s employer, the third defendant, had been engaged by the first and second defendants to refurbish their premises. It was alleged that all three had been negligent and in breach of their statutory duty. No health and safety plan had been prepared by the first and second defendants in breach of regulation 10 of The Construction (Design and Management) Regulations 1994, and regulation 4(2) of The Construction (Health, Safety and Welfare) Regulations 1996 had also been breached. This regulation imposes a duty on every person who controls the way in which any construction work is carried out to comply with the provisions of the Regulations, including taking steps to prevent any person falling. Mr McCook’s employer was found liable but the other defendants were not since although they had breached regulation 10 of the 1994 Regulations, this had not caused the accident. Mr McCook’s appeal, arguing that this conclusion was wrong, was dismissed by the Court of Appeal. Regulation 4(2) of the 1996 Regulations concerned control over construction work and not the general control exercised by an occupier. As the first and second defendants had not controlled the construction work in any way, they had not breached that regulation. Although there had been a breach of regulation 10 of the 1994 Regulations (no health and safety plan) this could not be regarded as causative, as the accident with the ladder had been of such an elementary and simple nature.
(McCook v Lobo and Others, [2002] All ER (D) 272 (Nov))

London congestion charge

In accordance with his duties and powers under the Greater London Authority Act 1999, the Mayor of London published a transport strategy proposing the introduction of a congestion charge. Following consultation, an order introducing a congestion charging scheme from February 2003 was confirmed. Westminster City Council applied for judicial review, contending inter alia that an environmental impact assessment (“EIA”) of the scheme should have been conducted under The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 and the EU EIA Directive (85/337/EEC), and that the European Convention on Human Rights (“ECHR”) and the Human Rights Act 1998 had been breached. These arguments were dismissed by the High Court and the application for judicial review was refused. The 1999 Regulations did not apply to the introduction of the congestion charge: environmental impact assessment was only necessary in the context of an application for planning permission and such permission was not needed for the congestion charging scheme. Further, the Council’s contention that the charging scheme fell within category 10 “Infrastructure projects” (specifically urban development projects) of Annex II to the EIA Directive (those requiring EIA if likely to have significant environmental effects) strained the words of the Directive beyond purposive construction as the congestion charge was essentially a traffic management scheme. The term “urban development project” implied rather more in the nature of building or construction. Neither did the Council have the legal standing to take action under human rights legislation. The ECHR and 1998 Act provided that only persons, non-governmental organisations or groups of individuals claiming to be a victim could make applications. This was abundantly clear and universally understood and the Council could not bring itself under the definition of non-governmental organisation. Section 222 of the Local Government Act 1972 (which provides that local authorities are entitled to prosecute, defend or appear in any legal proceedings and, in the case of civil proceedings, to institute them in their own name) did not displace this.
(R (on the application of Westminster City Council) v Mayor of London, [2002] All ER (D) 494 (Jul))

European Union

Public procurement

In Concordia Bus Oy Ab v Helsingin Kaupunki and HKL-Bussiliikenne, conditions for the application of environmental criteria in competitive tendering for public contracts were set out by the European Court of Justice. Helsinki City Council called for tenders to operate its bus network. Three categories of criteria were used to assess which tender was economically most advantageous overall: the price of the operation, the quality of the bus fleet and the operator’s quality and environment programme. On this basis, the contract was awarded to HKL-Bussiliikenne, a company operating a vehicle fleet capable of meeting specified air and noise emission limits. One of the beaten tenderers appealed unsuccessfully to the Competition Council claiming that it had been unfair and discriminatory to award additional points for fleets meeting these environmental limits and that points had been awarded for using a type of bus which only HKL-Bussiliikenne was able to offer. On appeal, the Supreme Administrative Court referred several questions to the ECJ, including whether EU legislation allows a municipality organising a tender procedure of this type to include operators’ ecological and quality management in the comparison of tenders. The ECJ ruled that where a contracting authority decides to award a contract to the tenderer whose tender is the most economically advantageous, it may take ecological criteria into consideration provided that these are connected with the subject matter of the contract, do not give the contracting authority an unrestricted freedom of choice, are expressly mentioned in the contract documents or the tender notice and comply with all the fundamental principles of EU law, in particular the principle of non-discrimination. Further, the principle of equal treatment does not prevent environmental considerations to be taken into account merely because only a limited number of undertakings can comply with them.
(Concordia Bus Oy Ab v Helsingin kaupunki and HKL-Bussiliikenne, ECJ C-513/99, 17 September 2002)

For further information please contact Paul Sheridan on 020 7367 2186 or at [email protected]