A selection of recent cases in environment and health & safety law 2

Water pollution

An Express Dairies Distribution milk tanker was travelling on the M25 motorway when a tyre blowout culminated in damage to a delivery pipe and the escape of milk from the tanker. The milk entered drains on the hard shoulder of the motorway which fed directly into controlled waters. The company was prosecuted by the Environment Agency for causing polluting matter to enter controlled waters, an offence under section 85(1) of the Water Resources Act 1991. The magistrates held that Express Dairies could not rely on the defence provided by section 89(1) of the 1991 Act, that the polluting entry was ‘caused or permitted … in an emergency in order to avoid danger to life or health’ because this was limited to situations in which an entry occurred to preserve life or health. In this case, the real cause of the entry of the pollutant was the tyre blowout and not the action of the driver in pulling onto the hard shoulder to avoid danger to life or health. Express Dairies appealed, arguing that the justices had erred in their construction of the defence. The company also argued that, following the authority of Environment Agency v Empress Car Company [1998] 1 All ER 481, the sequence of events from the blowout to the pollution had been so extraordinary that the chain of causation had been broken and no offence had therefore been committed. This latter argument was dismissed by the High Court which ruled that there had been no break in the chain of causation. The tyre blowout could not be considered to be ‘extraordinary’. On the contrary, it was an ordinary event and the resulting events had followed from it. The use of ‘extraordinary’ in Empress Car Company referred to the intervention of a third party or a natural event. Express Dairies could however rely on the defence to causing water pollution provided by section 89(1) which, on its true construction, was available to a person who acted in an emergency to preserve life or health. It was not limited to situations in which the discharge itself was caused to preserve life or health. The concept of ‘causing’ entry was broader than that of ‘discharge’ so it was possible to consider the chain of causation and determine whether the action that had caused the entry of the pollutant had been taken to avoid danger to life or health. The defence was therefore available to the defendant in this case and the conviction quashed.
(Express Dairies Distribution v Environment Agency, All ER D 393, 27 February 2003)

Fines and costs of £119,750 were imposed on Henkel Ltd after the chemical company pleaded guilty to eight separate water pollution and integrated pollution control offences under section 85 of the Water Resources Act 1991 and section 23 of the Environmental Protection Act 1990. The prosecution followed several incidents, including one in which two tonnes of sodium nitrite were discharged into a dyke. This was not reported to the Environment Agency for two weeks. The costs awarded against the company totalled £21,750.
(Environment Agency News Release, 21 March 2003)

Thames Water Utilities Ltd was fined twice in recent months for polluting watercourses with sewage. In January 2003, the company pleaded guilty to an offence under section 85 of the Water Resources Act 1991 after foul sewage from an outfall overflowed into the surface water network and entered a brook in West London. A fine of £20,000 was imposed, plus costs of £2,801. Thames Water admitted three further water pollution offences under section 85 of the 1991 Act in March 2003. It was fined a total of £22,500 with £2,900 costs: £17,500 for breaching the conditions of its discharge consent and £5,000 each for two charges of causing water pollution. The company was prosecuted following an incident in which sewage escaped from a pumping station and entered a lake and streams, resulting in a substantial fish kill. It has already paid £48,000 to replace fish stocks at the site.
(Environment Agency News Releases, 28 January and 26 March 2003)

Two other sewerage undertakers were prosecuted in early 2003 for water pollution offences under section 85 of the Water Resources Act 1991. United Utilities Water plc was fined £19,000 with costs of £1,257 after it admitted discharging sewage effluent into a tributary of the River Wenning. Effluent was found to be escaping from lagoons at the company’s wastewater treatment works. A fine of £18,000 was imposed on Anglian Water Services Ltd in February 2003. The company pleaded guilty to causing trade or sewage effluent to be discharged into the North Sea from its wastewater treatment centre in Lowestoft. A routine sampling exercise by the Environment Agency found that the effluent being discharged was in breach of the conditions of Anglian Water’s discharge consent concerning suspended solids and BOD.
(Environment Agency News Releases, 22 January and 21 February 2003)

Sewerage services

Section 101A of the Water Industry Act 1991 imposes a duty on sewerage undertakers to provide a public sewer for the drainage of domestic sewage if the conditions set out in that section are satisfied. Unsuccessful applications for access to the public sewerage system were made by a number of householders to their sewerage undertaker (the claimant). The sewerage undertaker concluded that the existing septic tanks should be replaced with cesspools. The dispute was referred to the Environment Agency which determined that the sewerage undertaker had a duty under section 101A of the 1991 Act to provide a public sewer to certain premises. The undertaker applied for judicial review of two of the Agency’s decisions, contending that the Agency had not carried out adequate inquiries and that it had wrongly assumed that it did not need to carry out the balancing exercise required by section 101A (2) and (3) because it was under the impression that a duty to sewer all the premises in the locality arose if any of them were causing adverse environmental effects. This approach had been held to be unlawful in R v Environment Agency, ex parte Anglian Water Services Ltd [2002] EWCA Civ 05 31 January 2002. It was also claimed that the Agency had applied its policy against cesspools inflexibly. The High Court dismissed the claimant’s appeal. Both parties accepted that it had been open to the Environment Agency to include premises in the duty to sewer that were not originally the subject of the initial application. In such circumstances, the Agency should however make the claimant aware of this and also seek to ensure that it had the necessary information in relation to the additional premises. This had been done in this case: the sewerage undertaker had been put on notice that the Agency was considering the additional premises and, on the information supplied by the claimant, the Agency had been entitled to reach its conclusions. The Agency had not failed to carry out the balancing exercise required under section 101A(2) and (3). Nor had it been under the impression that all premises in the locality had to be sewered if any were found to be causing adverse environmental effects. Finally, there was no evidence that it had applied its cesspool policy inflexibly. The application for judicial review was dismissed.
(Dwr Cymru Cyfyngedig v Environment Agency of Wales, [2003] EWHC 336 (Admin), 28 February 2003)

Waste

Stewart Browett received a four months prison sentence after pleading guilty to eight charges of keeping and treating waste on his land without a waste management licence, an offence under section 33 of the Environmental Protection Act 1990. The judge found that Mr Browett was criminally involved in the activities at the site he occupied and that his unwillingness to pay a financial penalty left no alternative other than the imposition of a custodial sentence. Kevin Kennell, a business associate of Mr Browett’s, was sentenced to eight months imprisonment for related waste offences in late 2002.
(Environment Agency News Release, 10 January 2003)

A three months prison sentence imposed on the owner of a skip hire company was reduced on appeal to a £20,000 fine by Derby Crown Court. Timothy Birchenough admitted two charges of depositing and keeping waste on land without a waste management licence contrary to section 33 of the Environmental Protection Act 1990 after his company was discovered to have tipped waste that had been collected from members of the public. Costs of £2,666 were also awarded against him.
(Environment Agency News Release, 24 February 2003)

Storing a quantity of waste more than ten times the amount permitted by the Environment Agency led to the prosecution of Kevin Deery and fines totalling £26,000. Mr Deery pleaded guilty to keeping waste without a waste management licence contrary to section 33 of the Environmental Protection Act 1990 (£12,000 fine). He also admitted charges of illegally burning waste (£1,000 fine) and storing oil in tanks without sufficient bunding at Deery Construction Ltd’s site (£4,000 fine). The company has since gone into liquidation. Costs of £10,000 were also awarded against Mr Deery.
(Environment Agency News Release, 25 March 2003)

Clinical waste

Fines totalling £100,000 were imposed on Eurocare Environmental Services Ltd after the company admitted ten charges relating to the illegal storage and handling of clinical waste and to the pollution of a watercourse with liquid from its incinerator. Eurocare Environmental, which had a number of waste disposal contracts with NHS Trusts, was discovered to be keeping clinical waste in unrefrigerated trailers in private lorry parks. An Environment Agency surveillance operation at the company’s incinerator also found non-compliance with its integrated pollution control (“IPC”) authorisation. The company pleaded guilty to six waste offences under Part II of the Environmental Protection Act 1990, one offence of failing to comply with the conditions of an IPC authorisation under Part I of the 1990 Act, one offence of causing water pollution contrary to section 85 of the Water Resources Act 1991 and two offences of making false and misleading statements to the Environment Agency in connection with applications for a waste management licence and an IPC authorisation. Eurocare Environmental was also ordered to pay £114,818 in costs.
(Environment Agency News Release, 14 February 2003)

Oil pollution

Extensive oil pollution resulted from the grounding of the Sea Empress off Milford Haven in 1996. Claims for damages coming above the owners’ limitation figure were to be settled by the International Oil Pollution Compensation Fund in accordance with the Merchant Shipping Act 1995. In this case, the claimant was a shellfish processing business based in Devon which had supply contracts with fishermen in the Milford Haven area. The company alleged that the fishing ban imposed under the Food and Environment Protection Act 1985 had led to it losing the profit it would otherwise have made from processing the shellfish and that this sum was recoverable without proof of default by virtue of section 153(1)(a) of schedule 4 to the 1995 Act. This section provides that where oil has been discharged or has escaped, the ship owner is liable for ‘any damage caused in the territory of the UK by contamination resulting from the discharge or escape’. Whilst the International Fund accepted the claimant’s loss of profit had been foreseeable, it argued that this flowed from the interruption of a business relationship with the primary victims of the contamination. As a matter of law, such a secondary or relational claim was not recoverable. The High Court agreed and ruled that the claim must fail for the same reasons as those in Landcatch Ltd v The International Oil Pollution Compensation Fund [1999] 2 Lloyd’s Rep 316, that is that it was an indirect, relational economic loss which was too remote from the causal factor. The claimant’s appeal to the Court of Appeal was unsuccessful, that Court holding that the claimant’s action should be excluded because it was not engaged in any local activity in the physical area of the contamination. Rather, its loss arose from its inability to process, pack and deliver the landed shellfish in a location far away from the pollution. This was a form of secondary loss and outside the intended scope of the 1995 Act which was closely focused on physical contamination and its consequences. In contrast, the local fishermen whose physical activities were closely affected by the oil pollution would be able to recover under the 1995 Act as they had a direct economic interest in the contaminated waters.
(Alegrete Shipping Co Inc and Another v The International Oil Pollution Compensation Fund 1971and Others, [2003] EWCA Civ 65, 7 February 2003))

Asbestos

Proceedings in negligence were brought against the Royal Navy by Mr Matthews, a former electrical mechanic who claimed that he had been injured by exposure to asbestos during his work on board ship between 1955 and 1968. In response, the Secretary of State certified under section 10(1)(b) of the Crown Proceedings Act 1947 that Mr Matthews’ injuries would be treated as attributable to service for the purpose of an entitlement to an award under the Naval Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983. The effect of this certificate was to preclude a claim in tort for personal injury. The High Court held that section 10 of the 1947 Act was a procedural bar to a civil claim and was therefore incompatible with article 6(1) of the European Convention on Human Rights (“ECHR”) (the right to have the opportunity of having civil rights determined by an independent and impartial tribunal). This decision was reversed by the Court of Appeal which allowed an appeal by the Crown and held that section 10 was substantive rather than procedural and that article 6 of the ECHR did not apply. Mr Matthews’ appeal to the House of Lords was dismissed. Article 6 was concerned with procedural fairness and the integrity of the state’s judicial system, not with the substantive content of its national law. Although defining the borderline between substance and procedure could be difficult, the general nature of the distinction was clear in principle. In this case, section 10 of the 1947 Act substituted a no fault system of compensation for a claim for damages, creating a substantive limitation on the right to sue the Crown in tort under section 2, which had section 10 not been enacted, would otherwise have been available. The provision of a certificate by the Secretary of State did not alter this. It was not a procedural limitation and so was not incompatible with article 6 of the ECHR.
(Matthews v Ministry of Defence, [2003] UKHL 4, 13 February 2003)

Health and safety – fines

Yorkshire Sheeting & Insulation Services Ltd (the defendant) was sub-contracted to carry out roofing works at commercial premises. In turn, the company engaged a number of self-employed workers, including one man who fell through a roof light and was fatally injured. Yorkshire Sheeting & Insulation and the main contractor (the co-defendant) pleaded guilty to failing to ensure the safety of persons not in their direct employment, an offence under section 3(1) of the Health and Safety at Work etc. Act 1974. In his sentencing remarks, the judge commented that the victim was an employee of the defendant and that the company, as employer, bore primary responsibility for his safety: had it been a civil case, the relative moral culpability would have been apportioned as 90% to the defendant and 10% to the co-defendant. A fine of £100,000 was imposed on Yorkshire Sheeting & Insulation, with £8,950 costs, whilst the co-defendant was fined £10,000 and significantly lower costs. Yorkshire Sheeting & Insulation appealed against this sentence, arguing that the judge’s approach had been wrong: the victim was not actually an employee, some factual errors had been made and a precise percentage approach to relative culpability should not have been adopted. The appeal was successful. The Court of Appeal held that the judge had erred in his sentencing by making factual errors and that his approach masked the true nature of the sentencing exercise. Too much emphasis had been placed on the apportionment of overall liability between the two parties and not enough on assessing the defendant’s degree of culpability and criminality in respect of the offence and the failure to take steps to ensure so far as is reasonable practicable the safety of the roof workers (following the guidelines in R v F Howe & Son (Engineers Ltd) [1999] 2 All ER 249). Setting a tariff for health and safety cases was not possible as each case must be decided on its own merits. In this case, a substantial fine was required but the £100,000 fine imposed was excessive. Taking into account the defendant’s culpability and mitigation, an appropriate fine was in the region of £60,000, an amount that would be reduced to reflect the costs order that was determined in relation to the proportion of the original fines. Yorkshire Sheeting & Insulation’s fine was quashed and a new fine of £55,000 imposed.
(R v Yorkshire Sheeting & Insulation Ltd, [2003] EWCA Crim 458, 26 February 2003)

Hedgerows

Under The Hedgerows Regulations 1997, prior notice of the removal of certain types of hedgerows must be given to a local authority, subject to specific exemptions, including the proper management of a hedgerow. A decision must be reached by the local authority within a prescribed period on whether to allow the removal or to issue a hedgerow retention notice. It is an offence to fail to serve a hedgerow removal notice. In this case, Mr Lloyd notified Conwy County Borough Council that he proposed to remove 100 metres of hedgerow but before the period prescribed for the Council to reach its decision had elapsed, the hedgerow was removed. In the subsequent prosecution, Mr Lloyd argued that the work carried out had not in fact required notification because the removal was necessary ‘for the proper management of the hedgerow’ (regulation 6(1)(j)). Evidence was accepted by the justices that the hedgerow was worthless and dangerous and that its removal was necessary for proper management. Mr Lloyd was acquitted and the Council appealed, arguing that allowing the complete removal of a hedgerow to come within permitted works under regulation 6(1)(j) would provide a mechanism for the Regulations to be circumvented. The High Court was required, inter alia, to decide whether the complete removal of a hedgerow could amount to ‘proper management’ for the purposes of regulation 6(1)(j). That regulation contemplated the removal of ‘any hedgerow’, if required for the proper management of ‘the hedgerow’. As it did not distinguish between removing some or all of the hedgerow, the regulation did encompass the possibility that complete removal could amount to proper management of a hedgerow. This interpretation did not provide a mechanism for the circumvention of the Regulations. In this case, it had been concluded, on the basis of the evidence presented to the justices, that total removal of the hedgerow was required for its proper management. The appeal was dismissed.
(Conwy County Borough Council v Lloyd, [2003] All ER (D) 11, 3 February 2003)

Environmental impact assessment

Planning permission for the erection of 407 residential units on a contaminated site was granted by the Secretary of State on appeal who decided that environmental impact assessment (“EIA”) was not required and that the necessary remediation work could be dealt with by attaching appropriate conditions to the permission. This decision was challenged under section 288 of the Town and Country Planning Act 1990 by a local resident who was concerned about the land contamination and the lack of an EIA. He argued that the Secretary of State had misdirected himself in law by having regard to potential remediation measures whereas The Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 suggested that the focus ought to be on likely significant environmental impact. The application was allowed by the High Court which held that an EIA should have been conducted before the grant of planning permission. The site in question required extensive remediation without which there would be likely to be significant environmental effects. The 1988 Regulations required the provision of separate information on likely environmental effects and measures to reduce or remedy those effects. The Secretary of State had been wrong to take the remediation proposals into account when deciding whether the development was likely to have significant environmental effects and therefore require EIA. Instead, he should have first decided that there were significant environmental effects and that an EIA was necessary and then determined the suitability and effectiveness of the remediation measures as part of the EIA procedure. The decision was quashed.
(Gillespie v First Secretary of State and Another, [2003] EWHC 08 Admin, 20 January 2003)

Nuisance

The claimant’s marshland was flooded when, after a period of heavy rainfall, water flowed from an adjoining marsh and lake owned by the defendants. The claimant brought a claim in nuisance for damage caused to his land by the flood and sought a declaration that the defendants had no right to discharge water onto his land. The High Court dismissed the claim: there was no nuisance liability and the duty of care identified in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 All ER 17 did not arise in relation to naturally flowing water. The claimant appealed. The Court of Appeal concluded that there was no authority for this proposition. The Leakey duty that an occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land did apply with respect to floodwater. ‘Naturally flowing water’ was an expression that could bear more than one meaning and in the context of the English landscape, a distinction between natural and artificial features was an inherently uncertain foundation on which to rest a decision as to the existence of liability in nuisance. It had therefore been incorrect for the High Court judge to conclude that there was no duty of care. The key to resolving disputes between neighbours in cases such as this was reasonableness between neighbours. In this case, the evidence suggested that the defendants had acted reasonably. The appeal was dismissed.
(Green v Lord Somerleyton and Others, [2003] EWCA Civ 198, 28 February 2003)

The claimants issued proceedings alleging that foul and surface water escaping from the defendants’ drainage system had penetrated the party wall between their premises and accumulated in their cellar. It was claimed that defendants had caused or permitted this to occur and that their action or lack of it constituted a nuisance. The claimants sought an injunction to prevent the continuation of the nuisance, plus damages to cover repair costs and loss of rent for the ground floor of the property. In court, it was established on the balance of probabilities that the defendants’ drainage system was responsible for the problem and that the defendants were liable in nuisance. An injunction was granted requiring investigations and remedial work and damages were awarded to the claimants in respect of past and future repair costs and past and future loss of rent. The defendants appealed, contending that the judge had not made specific findings or given reasons to justify the overall conclusion that they were liable in nuisance. It followed therefore that there was no basis on which to make an order for an injunction and that, in any event, the terms of the injunction were too vague. This appeal was dismissed by the Court of Appeal. On the evidence, the judge had found that water had run between the properties because of defects in the defendants’ drainage system. It was implicit in these findings that at the time the defendants must have known about the drainage defects and their consequences. The proper test for liability was whether the defendants were aware or should have been aware of the facts that constituted the nuisance: it was not necessary for the judge to find that the defendants knew the facts and also appreciated that as a matter of law that they constituted a nuisance. In this case, the defendants had known the facts at all times and the judge had made no error in respect of their liability in nuisance. Further, criticism of the injunction was unfounded. It was open to the defendants to apply to the court for an order that they had discharged all their obligations in relation to the injunction. Neither had the judge been wrong concerning the damages awarded. To sum up, she had not erred in any aspect of liability or damages and there had been nothing wrong with the form or content of the injunction.
(Fawcett and Others v Phoenix Inns Ltd and Another, [2003] EWCA Civ 128, 12 February 2003)

For further Information please contact Paul Sheridan on +44(0)20 7367 2186 or at paul.sheridan@cms-cmck.com