Recent case law
Waste
A landfill site operated by Rhondda Waste Disposal Company Ltd and owned by Rhondda Cynon Taff County Council had been giving rise to noxious odours and had been the subject of complaints. The Environment Agency served notices on the company requiring the landfill to be capped and emissions to be monitored. However, the cost of the works were increased by technical difficulties and the company was pushed into administration. The issue for the Court of Appeal was whether a criminal prosecution commenced after the petition for the administration order but before the court order was made, was within section 10(1)(c) of the Insolvency Act 1986. The Court held that administration orders are permitted for clear and narrowly defined purposes and that the wording of the 1986 Act could certainly cover criminal proceedings. The intention of administration is to allow the company a breathing space in which, under the management of the administrator, to try and survive, to reach a voluntary arrangement with creditors or to achieve a more advantageous realisation of assets than winding up would have achieved. Under administration, a moratorium on enforcement of debts and other rights applies. The Court, therefore, held that it should also be possible to filter criminal proceedings as well, in order to prevent the administration process from being hindered but that this should only be done in a limited class of cases. This would depend on weighing up the public interest and interest of the creditors. The Court of Appeal held that the court dealing with the administration would be best placed to make this assessment and that the High Court had been incorrect in treating the interests of creditors as paramount; in this case, where serious pollution and damage to amenities was occurring, it was appropriate to give leave to prosecute.
(In Re Rhondda Waste Disposal Company Ltd (in administration), Times Law Reports, 2 March 2000)
8 month prison sentences imposed on two men found guilty of dumping lorry tyres contrary to section 33(1)(a) of the Environmental Protection Act 1990 were quashed by the Court of Appeal. The Court held that the custodial sentences were not appropriate for this offence which was at the lower end of the spectrum of pollution offences. The facts considered by the Court in reaching this decision included that: the nuisance had been unsightly; at worst the risk had been that of rats and fire; there had been no long term effect on the environment; there had been a lack of danger (no licence was required to store the items); there had been no repetition of the offences; the appellants might have thought they could dispose of the tyres to farmers; there were no relevant previous convictions; there had been guilty pleas, although only at the last moment; and the appellants had not been the only parties involved in the offences.
(R v O'Brien and R v Enkel, Times Law Reports, 19 April 2000)
SARP UK Ltd was fined £120,000, plus costs of £150,000, after a number of contraventions of waste and health and safety legislation took place at its Killamarsh site. The offences occurred when a mixed load of sulphuric and nitric acid was brought by tanker for treatment at the site. Problems were experienced during the unloading of the acid and later a leak led to a fire, generating a cloud of nitrogen dioxide gas which drifted towards Killamarsh village. Further problems occurred when the acids were put into storage tanks. A joint prosecution was brought by the Environment Agency and the Health and Safety Executive and the defendant pleaded guilty to two charges of keeping special waste in a manner likely to cause pollution of the environment or harm to human health contrary to sections 33(1)(c) and 33(9) of the Environmental Protection Act 1990 (£80,000 total fine), a charge of failing to ensure the health, safety and welfare at work of its employees under the Health and Safety at Work etc. Act 1974 (£20,000 fine) and a charge of failing to ensure that the tanker used was suitable for the carriage of the materials under the Carriage of Dangerous Goods by Road Regulations 1996 (£20,000 fine).
(Environment Agency News Release, 23 December 1999)
A Wigan man was jailed for 18 months after pleading guilty to four offences involving the illegal depositing, treating, keeping and disposing of waste at his scrap yard. A variety of waste materials was found at the site, including vehicle engines, battery acid, oil and tyres. Some wastes had been burned there and others smelted to produce aluminium ingots. Joseph Threlfall received three 12 month sentences for the offences of depositing, treating and disposing of controlled waste without a waste management licence contrary to sections 33(1)(a), 33(1)(b) and 33(6) of the Environmental Protection Act 1990 and an 18 month sentence for keeping controlled waste, including special waste, without a waste management licence contrary to sections 33(1)(b) and 33(6) of the 1990 Act. The sentences will run concurrently.
(Environment Agency News Release, 7 August 2000)
The disposal of waste at an unlicenced landfill was detected by Environment Agency officers when they conducted routine inspections at a neighbouring site in Chorley. Waste was seen being transferred between the two sites. Ian Ashburn, a director of the company operating the licensed landfill and also of Houghton House Sand Ltd, the owner of the unlicenced site, was warned several times by the Agency to cease the illegal deposits of waste but tipping continued. The Agency brought three charges of depositing and keeping waste on land without a waste management licence against Houghton House Sand Ltd under sections 33(1)(a), 33(1)(b) and 33(6) of the Environmental Protection Act 1990. The company, which pleaded guilty, was fined £50,000 and ordered to pay costs of £10,000. One charge was brought against Mr Ashburn under section 157(1) of the 1990 Act because the offence was attributable to his neglect as a director of the company. He pleaded guilty and was fined £10,000, plus costs of £3,657.85.
(Environment Agency News Release, 12 May 2000)
Premiere Environmental Ltd applied for judicial review of the Environment Agency's decision to make the termination of a suspension notice for a waste management licence served under section 38(6) of the Environmental Protection Act 1990, dependent upon the Agency notifying the company that it considered that it was possible for waste processing to continue without causing serious pollution or harm to human health. Section 38(12) provides that: 'Any revocation or suspension shall .... be effected by notice served on the holder of the licence and the notice shall state .... the period at the end of which, or the event on the occurrence of which, the suspension is to cease'. The applicant argued that the state of mind of the Agency was not an 'event'. In the High Court, however, Mr Justice Sullivan held that while 'event' had to be related to the purpose of the suspension, there was no reason to import any other limitation on its meaning. In many cases, suspension notices had to be served without knowledge of the problem or the remedial action likely to be required. On a purposive approach therefore, there was no reason why notification by the Agency of a particular state of affairs should not be an event. Premiere Environmental Ltd's application was refused.
(R v Secretary of State for the Environment, Transport and the Regions, ex parte Premiere Environmental Ltd, Times Law Reports, 15 March 2000)
Radioactive waste
A company director arranged for over half a tonne of depleted uranium to be removed from premises in Hemel Hempstead and illegally disposed of. The radioactive waste was subsequently discovered at a scrap yard in Sheffield and a farm in Northamptonshire. Jenny Seward, a former director of CSW Engineering Ltd and P Jenson & Company, was the first individual to be prosecuted for an offence of this type under the Radioactive Substances Act 1993. At St Albans' Crown Court she was fined £4,000 and received a 12 month prison sentence, suspended for two years. The Environment Agency estimated that the cost of disposing of the waste and cleaning up the contaminated land would be more than £250,000.
(The Independent, 26 February 2000)
Landfill tax
A wholly owned subsidiary of Darfish Ltd bought material from two other companies and deposited this at a landfill site owned and operated by Darfish Ltd. A VAT and Duties Tribunal decided that Darfish Ltd was not liable for landfill tax on the disposal because its subsidiary was making the deposit on its behalf under section 64(3) of the Finance Act 1996 and not on behalf of the two companies. The deposit of the material on the landfill site was not therefore the disposal of waste. The Commissioners of Customs and Excise's appeal against this decision was allowed by the High Court which ruled that although the term 'disposal' is not defined by the 1996 Act, this concept is wider than either discarding or depositing, and includes removal processes and is not confined to the moment of deposit. When determining whether there had been an intention to discard within the meaning of section 64(1), it was insufficient to consider only Darfish Ltd's intentions; the intentions of the two companies providing the material must also be considered. Transfer of title in the material could not assist in this determination. As the Tribunal had not made any finding on intention to discard, the matter should be remitted for reconsideration.
(Commissioners of Customs and Excise v Darfish Ltd, Times Law Reports, 28 March 2000)
Andrew Harris, a farmer, appealed to the Court of Appeal against his conviction for an offence of being knowingly concerned in fraudulent evasion of landfill tax contrary to paragraph 15(1) of schedule 5 to the Finance Act 1996 between 1 October 1996 and 5 August 1997. He was granted a waste management licence and had also been compulsorily registered under the 1996 Act so he was liable to be registered under that Act from October 1996. In January 1997, it was found that total disposals of waste on his land had exceed that permitted and a stop notice was issued by the local planning authority prohibiting further disposals. The licence was suspended in August 1997. Mr Harris argued that there was no case to answer because it could not be established that taxable disposals within the meaning of section 40 of the 1996 Act had occurred and no tax was therefore due. Section 40(2) provides that a disposal is a taxable disposal if it is a disposal of material as waste, it was made by way of landfill, it was made at a landfill site and it was made on or after 1 October 1996. Land would be a landfill site at a given time if a site licence granted under the Environmental Protection Act 1990 was in force to authorise the disposal. Mr Harris argued that the licence had only authorised disposals subject to conditions and when those conditions were breached before October 1996, the subsequent disposals were not authorised and did not fall within the 1996 Act. At the relevant time, the site was not a landfill and taxable disposals had not been made. The Court of Appeal ruled however that the breach of the licence conditions and the issue of the stop notice did not prevent the licence from remaining in force until August 1997 when it had been suspended. The relevant sections of the 1996 Act had therefore applied and Mr Harris was liable for the tax.
(R v Harris, Times Law Reports, 2 May 2000)
Integrated pollution control
The existence of persistent and offensive odour around its Clitheroe works led to Castle Cement Ltd being fined £45,000, plus costs of 74,600 for breaching the conditions of its IPC authorisation. The company pleaded guilty to three charges of carrying on a prescribed process not in accordance with an authorisation condition requiring that no persistent odour causing offence should be present at ground level outside the site boundary, contrary to sections 6(1) and 23(1) of the Environmental Protection Act 1990. A fine of £15,000 was imposed for each offence.
(Environment Agency News Release, 10 July 2000)
Water pollution
A leak in an underground refuelling pipeline led to contamination of groundwater at a train maintenance depot owned by Railtrack plc and occupied by Silverlink Train Services Ltd. Despite evidence that a leak might exist, no remedial action was taken for many months and approximately 213,000 litres of fuel was lost over an eight month period. Both companies pleaded guilty to causing/knowingly permitting poisonous, noxious or polluting matter to enter controlled waters, an offence under section 85(1) of the Water Resources Act 1991 and they were each fined £125,000. They also shared the Environment Agency's costs of £25,000.
(Environment Agency News Release, 8 February 2000)
Statutory nuisance
A statutory nuisance abatement notice requiring South West Water Ltd to cease discharging sewage into part of an estuary was ruled invalid by the Court of Appeal because the meaning of the term 'watercourse' in section 259(1)(a) of the Public Health Act 1936 (as amended by the Environmental Protection Act 1990), did not include a river or estuary. The notice was served by Falmouth and Truro Port Health Authority under section 80 of the 1990 Act and the water undertaker successfully applied to the High Court for judicial review of the Authority's decision. The Authority had then appealed to the Court of Appeal. Two other High Court rulings to quash the notice were not upheld however. Firstly, it was not necessary for the Authority to consult with the water undertaker before serving the abatement notice and secondly, the abatement notice was not invalid because it did not specify the works required to abate the nuisance. The Court of Appeal analysed case law on the interpretation of section 80(1)(b) of the 1990 Act which requires 'the execution of such works, and the taking of such other steps, as may be necessary' to abate a nuisance. The judge overruled Kirklees Metropolitan Council v Field [1997] 96 LGR 151 to hold that in all cases a local authority could if it wished leave the choice of the means of abatement to the perpetrator of the nuisance. If however the means of abatement were required by the local authority, then they must be specified; Network Housing Association Ltd v Westminster City Council [1994] 93 LGR 280 and Sterling Homes (Midlands) Ltd v Birmingham City Council [1996] Env LR 121 remained good law. Further, the Court stated that permission to make applications for judicial review should rarely be given in cases concerning public safety if the applicant has a statutory right of appeal.
(R v Falmouth and Truro Port Health Authority, ex parte South West Water Ltd, Times Law Reports, 24 April 2000)
Action may be taken under section 79(1)(b) of the Environmental Protection Act 1990 with regard to a statutory nuisance comprising smoke, even when there is only the smell of smoke and no visible particles. Richard Griffiths, appealing against a conviction for failing to comply with an abatement notice requiring him to cease burning animal carcasses on his land, contended that the wrong definition had been applied by the Crown Court: although there might have been a smell, the abatement notice had specified that the nuisance was due to smoke. The High Court found that smoke was defined in the 1990 Act as including soot, ash, grit and gritty particles emitted in smoke and the dictionary meaning of smoke was 'the visible volatile product given off by burning or smouldering substance', but in common parlance it could also be applied to the smell of smoke. The Crown Court was entitled to accept evidence that it was possible to detect the smoke when nothing could be seen with the naked eye.
(Griffiths v Pembrokeshire County Council, Times Law Reports, 19 April 2000)
Personal injury
The appeals of a group of South Africans who worked in or lived close to the asbestos mines, mills or factories of Cape plc in South Africa were allowed by the House of Lords against a Court of Appeal decision upholding an order to stay personal injury proceedings in England. The group claimed that they had suffered injury or death as a result of exposure to asbestos at their workplace or asbestos contamination of their neighbourhood. Cape plc, a public limited company incorporated in England, operated in South Africa until 1989. The company successfully applied to stay all proceedings on the grounds of forum non conveniens. The Court of Appeal ruled that the action had the most real and substantial connection with South Africa and that considerations of expense, convenience and public policy also pointed strongly in that direction. The claimants appealed, arguing that as legal aid for personal injury claims had been withdrawn in that country, there was no reasonable likelihood of any lawyer taking on the case. Following the principle in Spiliada Maritime Corporation v Cansulex Ltd [1986] 3 All ER 843, a stay of proceedings would only be granted on the grounds of forum non conveniens where there was some other available forum with competent jurisdiction which was appropriate for the trial of the action. The House of Lords held that although it was correct to regard South Africa as the most appropriate forum for the trial, justice would not be done there as the probability was that the claimants would have no means of obtaining the necessary professional representation and expert evidence. In these special and unusual circumstances, lack of means in South Africa to prosecute the claims to a conclusion was a compelling reason to refuse to stay the proceedings in England. Further, the House of Lords held that public interest considerations not related to the private interests of the parties and the ends of justice could have no bearing on the court's decision.
(Lubbe and others v Cape plc and other appeals, Independent Law Reports, 26 July 2000)
Environmental impact assessment
The redevelopment of Fulham Football Club's Craven Cottage stadium was likely to have significant environmental effects and therefore require the submission of an environmental statement in accordance with the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (which implement Directive 85/337/EEC on the effects of certain public and private projects on the environment). Planning permission was granted by the Secretary of State after a public inquiry but without considering whether an environmental impact assessment ('EIA') was necessary. Lady Berkeley applied to quash the granted permission under section 288 of the Town and Country Planning Act 1990 on the grounds that it was ultra vires having been made without consideration of the necessity for an EIA. This was dismissed by the High Court, a decision upheld by the Court of Appeal. Lady Berkeley appealed to the House of Lords. It was agreed between the parties that the Secretary of State had breached regulation 4(2) of the 1988 Regulations in granting the permission without taking an environmental statement and public representations into account and that this failure could only be excused in law on the ground that there had been substantial compliance with the Directive and the Regulations. In the House of Lords, the Secretary of State's argument that substantial compliance, i.e. an environmental impact assessment by another name, would suffice (following Commission v Germany (C-431/92 [1995] ECR I-2189) was rejected as although publicly available, the environmental information provided was not a single and accessible compilation produced by the applicant at the beginning of the application process and did not contain a non technical summary for the public. The House of Lords held that Directive 85/337/EEC requires that the planning authority should have all the necessary information and that that this should have been gathered by means of an EIA. An important aspect of this procedure was that the environmental statement produced by the developer should be made available to the public for comment. The directly enforceable right of the citizen under the Directive was not merely a right to a fully informed decision on the issue. It was not possible therefore for the court retrospectively to dispense with the EIA requirement on the ground that the outcome would have been the same or that the local planning authority had all the necessary information to enable a proper decision on environmental issues to be reached. Although section 288 of the 1990 Act, in providing that an ultra vires planning permission 'may' be quashed, did confer a discretion on the court, it was not consistent with obligations under EU law for the court to exercise that discretion and uphold a permission granted contrary to the requirements of Directive 85/337/EEC. The planning permission was therefore quashed.
(Berkeley v Secretary of State for the Environment and another, Times Law Reports, 7 July 2000)
In R v Durham County Council, ex parte Huddleston, the Court of Appeal further clarified the extent to which judicial review of planning decisions made without environmental impact assessment ('EIA') may be obtained. Rodney Huddleston lived close to a quarry owned by Sherburn Stone Company Ltd. The company held a dormant mining permission to extract minerals from that quarry and applied to Durham County Council to register the permission in order to enable extraction to take place, subject to appropriate conditions (as provided by section 22 and schedule 2 of the Planning and Compensation Act 1991). The company did not conduct an EIA and although the Council considered that one was necessary, it was advised that it could not insist on the submission of an environmental statement for the project. The application could not be determined and so, as provided by schedule 2 of the 1991 Act, after three months, it was deemed to be granted. Mr Huddleston applied for judicial review to quash the Council's decision. In R v North Yorkshire County Council, ex parte Brown [1999] 2 WLR 452, it was established that a mineral planning authority's determination under section 22 and schedule 2 was a 'development consent' for the purposes of Directive 85/337/EEC on the effects of certain public and private projects on the environment and that EIA was therefore required. However, the question of the validity of the schedule 2 deeming provision had been left open. Mr Huddleston's application was refused by the High Court on the basis that the court could not treat the deeming provision of schedule 2 as ineffective because to do so would override the rights conferred on the quarrying company by national law contrary to the principle that directives do not have direct effect as between individuals. This decision was reversed by the Court of Appeal on appeal by Mr Huddleston. The Court held that the deeming provision could be disapplied to give effect to the unimplemented Directive because to do so did not affect the obligations between Mr Huddleston and Sherburn Stone Company Ltd, but only those between the quarrying company and the state which had failed to implement Directive 85/337/EEC properly. The enforcement of the Directive against the state was not impermissible solely because of its consequential effect on other individuals. The Council and Sherburn Stone Company Ltd had to treat the statutory default provision for the deemed grant of permission as ineffective.
(Times Law Reports, 15 March 2000)
Nuisance
Scarborough Borough Council appealed against a decision of the High Court in favour of Holbeck Hall Hotel. The hotel stood on a cliff 65 metres above sea level. In June 1993, a major landslip occurred and the hotel had to be evacuated and demolished. The Council was the owner of the lower cliff below the hotel. Due to the rapid erosion of this coast line, the cliff was unstable and unpredictable landslips were foreseeable. The Court of Appeal held that there was a duty to take positive steps to provide support for a neighbour's land. It held that the principle in Leaky v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485 was applicable even in cases where there was no withdrawal of support but merely an omission to provide support. In order for the measured duty of care established by Leaky to apply, the Council had to know or be presumed to know of the condition giving rise to the hazard and had to be expected, if acting reasonably, to foresee that the condition would damage the hotel's land unless remedied. The Court of Appeal held that the nuisance arises with the condition of the land in conjunction with the resulting danger. Liability arises from the knowledge or deemed knowledge of the nuisance and failing to abate it when this could reasonably be achieved. The Court of Appeal held further that knowledge would be deemed if the Council ought reasonably to have observed the defect but not merely because it could have been discovered by further investigation. In this case, the Council did not foresee the magnitude of the danger and would have needed further geo-technical investigations to do so. In such cases of omission, the Court of Appeal held that the duty of care depended on the degree of foreseen damage, the cost of abatement and the ability of the Council to do so. It was not in the interests of justice for the Council to be responsible for damage which was much more expensive than that foreseen or which should reasonably have been foreseen. The Council's duty of care was limited to avoiding damage to the claimant's land which it ought to have foreseen without further geo-technical investigation. The Court also held that it was not necessarily the case that a party in the Council's position should carry out the works anyway. The scope of the duty might be limited to making the hotel aware of the danger sharing relevant information. The Court of Appeal, therefore, allowed the Council's appeal.
(Holbeck Hall Hotel Ltd and Another v Scarborough Borough Council, Times Law Reports, 2 March 2000)
Judicial review
This is a further case in the saga surrounding Green Environmental Industries Ltd' director, John Moynihan. A waste registration officer of Hertfordshire County Council found over 100 tonnes of clinical waste stored at two sites. No waste management licence was in place for the keeping of the waste and it appeared that the sites had been leased or licensed to Green Environmental Industries Ltd. Hertfordshire County Council wrote to the company, with a copy to Mr Moynihan, alleging breach of section 33 of the Environmental Protection Act 1990 and requesting that the company remove and incinerate the waste. The Council then served a notice under section 71(2) of the 1990 Act on Green Environmental Industries Ltd seeking information. Through its solicitors, the company sought confirmation that answers to the request for information would not be used as evidence in the prosecution of the company. Confirmation was refused and Green Environmental Industries Ltd applied for judicial review, challenging the validity of the request for information. The company's application for judicial review and its appeal to the Court of Appeal was refused. Green Environmental Industries Ltd appealed again to the House of Lords arguing that although it accepted that section 71(2) excluded self incrimination as grounds to refuse information it could rely on article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953. The House of Lords confirmed that it was contrary to the intention of Parliament and to public policy that self incrimination could be used as a grounds to refuse information under a section 71(2) notice. It was agreed that as the Environmental Protection Act 1990 implemented Directive 91/156/EEC on waste it should be interpreted in the context of EU law, including its principles of human rights. The House of Lords held that the EU case law on article 6(1) relates to the fairness of the trial and to enquiries of regulatory authorities. Green Environmental Industries Ltd sought to rely on Saunders v United Kingdom (1996) 23 EHRR 313 but the House of Lords held that the request for information under section 71(2) would not be construed as an 'adjudication', 'either in form or substance' and the appeal was, therefore, dismissed.
(R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another, Times Law Reports, 22 February 2000)
