Environment law update: Recent cases in environment and health and safety law

Waste

A six month prison sentence was imposed on a man who accumulated around 3,000 tonnes of waste from his skip hire business at his rented premises. Kenneth Richards pleaded guilty to one offence of keeping waste on land without a waste management licence and was found guilty of one further offence of knowingly causing waste to be deposited on land without a waste management licence, contrary to section 33 of the Environmental Protection Act 1990. It was estimated that Mr Richards’ illegal activities had saved him in the region of £285,000 in waste disposal charges and waste management licensing costs. He ignored Agency advice that his actions were unlawful and then abandoned the site, sold his skip vehicles and left the landowner to clean up.
(Environment Agency News Release, 1 July 2002)

The director of a company which had gone into liquidation admitted two charges of illegally disposing of waste, contrary to Part II of the Environmental Protection Act 1990. Christopher Collins was fined £3,000 for burning and separating waste without a waste management licence and £1,000 for illegally depositing soil and broken bricks on farmland. Environment Agency officers watched employees of Mr Collins’ company sorting and burning waste materials at one site and depositing waste at another. He was also ordered to pay £1,000 costs. Prosecution of a director by the Agency in these circumstances is relatively rare.
(Environment Agency News Release, 31 July 2002)

Fines totalling £54,000 were received by Midland Waste Management after it pleaded guilty to 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. The company, which operated a number of skip hire, waste collection and recycling businesses, was found to have illegally stored and disposed of waste over a period of many months. Costs of £3,748 were also ordered to be paid.
(Environment Agency News Release, 16 August 2002)

Packaging

Failing to comply with the requirements of The Producer Responsibility Obligations (Packaging Waste) Regulations 1997 during the period 1997 – 2001 led to fines totalling £36,000 for Stationery Box Ltd. The company pleaded guilty to five offences of failing to register with the Environment Agency and four of failing to take reasonable steps to recover and recycle packaging waste. A fine of £4,000 was imposed for each offence, plus costs of £1,070.
(Environment Agency News Release, 10 September 2002)

Water pollution

The Environment Agency prosecuted Thames Water Utilities Ltd under both waste and water pollution legislation after sewage flooded the grounds of properties in the Redhill area and polluted a tributary of the River Mole. Lack of capacity at a pumping station operated by the water and sewerage undertaker led to sewage flooding at times of heavy rainfall. The company pleaded guilty to three charges of depositing waste on land without a waste management licence contrary to section 33(1)(a) of the Environmental Protection Act 1990 and two charges of polluting controlled waters contrary to section85 of the Water Resources Act 1991. It was fined £15,000 for each waste offence and £10,000 for each water pollution offence. Costs of £2,468 were also awarded. The company is now working to increase the capacity of the local sewerage system.
(Environment Agency News Release, 3 July 2002)

Thames Water Utilities Ltd was also prosecuted by the Environment Agency in August 2002 for causing sewage to enter the River Wey and several ornamental lakes of historical interest. A blocked foul sewer led to sewage reaching the river and lake system. A number of communication and liaison failures meant that action to clear the blockage was not taken quickly enough by Thames Water’s contractors. The company pleaded guilty to contravening section 85(3) of the Water Resources Act 1991 and was fined £19,000 with £1,050 costs. It has paid £45,000 for remediation work, including fish restocking.
(Environment Agency News Release, 20 August 2002)

A total fine of £23,000 was imposed on Huntsman Petrochemicals (UK) Ltd after the company polluted the River Tees with around 100 tonnes of benzene. Huntsman pleaded guilty to one offence under section 85 of the Water Resources Act 1991 and one under Part I of the Environmental Protection Act 1990. A valve on a benzene storage tank had not been properly closed and the slip plate in the tank’s leak prevention system had been removed during a maintenance operation. Employees had no written instructions informing them to replace the slip plate and the company had also failed to detect the leak though its stock level records.
(Environment Agency News Release,24 September 2002)

United Utilities Water Ltd pleaded guilty to one offence under section 85(3) and 85(6) of the Water Resources Act 1991 of causing sewage effluent to be discharged into controlled waters and was fined £17,000 with £1,321 costs. A power failure at a treatment works meant that sewage could not be pumped for treatment and accumulated untreated sewage overflowed into a tributary of the River Alt. The company was aware that measures should have been taken to prevent the overflow because a discharge consent for emergency situations such as electrical and mechanical breakdowns had previously been refused by the Environment Agency because, inter alia, there was no provision for standby generators and very limited storage at the site. On the day of the incident, a tanker was to take sewage to another treatment works but this arrived too late to prevent the illegal discharge. A generator is now to be installed at the site.
(Environment Agency News Release, 27 June 2002)

£78,180 in fines and costs was imposed on Faccenda Group (South) Ltd after a discharge of activated sludge from a poultry processing plant turned the River Avon orange. The company’s effluent treatment works was found to be in a poor state of repair and the factory was operating in excess of its design capacity. A fine of £15,000 was imposed for each of four offences after Faccenda pleaded guilty to breaching the conditions of its discharge consent on four separate occasions contrary to section 85(3) of the Water Resources Act 1991. It also pleaded guilty to causing poisonous, noxious or polluting matter to enter controlled waters contrary to section 85(1) of the 1991 Act and was fined £15,000. Costs of £3,180 were awarded against the company.
(Environment Agency News Release, 13 August 2002)

Water abstraction

Two companies have been prosecuted by the Environment Agency for water abstraction offences. In July 2002, Charles Houlbrooke, lead partner of strawberry growers G and B Houlbrooke, admitted four charges under section 24 of the Water Resources Act 1991 after removing groundwater without the necessary abstraction licence. He was fined £10,000 with £1,502 costs. The fibreboard manufacturer Kronospan was fined a total of £6,000 (one fine of £3,000 and three of £1,000) after pleading guilty to four charges of exceeding the abstraction limit set out in its abstraction licence, contrary to section 24 of the 1991 Act. The company was also ordered to pay £1,965 in costs.
(Environment Agency News Releases, 17 July 2002 and 13 September 2002)

Flood defences

The Environment Agency applied successfully to the Secretary of State for the Environment, Food and Rural Affairs under section 147(1)(b) of the Water Resources Act 1991 for grant aid to carry out flood prevention work. Planning permission for the project had already been obtained. The Secretary of State’s discretion to award the grant was not limited by the 1991 Act but the Land Drainage (Grants) Regulations 1967, supported by supplementary guidance, did place some obligations on organisations applying for funding. In particular, the guidance referred to environmental considerations and required a cost/benefit analysis to be conducted. In response to the environmental concerns of local residents, the Secretary of State stated that the works met the normal environmental criterion in that planning permission had been granted. His decision was confirmed and work on the project began. The local residents applied for judicial review, arguing inter alia that the Secretary of State should have satisfied himself, on the basis of the environmental information before him, that the best flood defence option had been identified. Further, he was obliged to conduct a cost/benefit analysis. The High Court disagreed with these contentions. The exercise of the Secretary of State’s discretion to provide grant aid was not subject to any statutory or regulatory scheme and the supplementary guidance issued was intended to assist applicants and not to impose any obligations on the Secretary of State. It was not necessary for him to revisit the Environment Agency’s decision and decide the best option for himself or to conduct a cost/benefit analysis. The application for judicial review was dismissed.
(R (on the application of Isaac and Others) v Secretary of State for the Environment, Food and Rural Affairs, [2002] All ER (D) 51 (Sep))

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’. It was submitted that under the 1995 Act, ‘damage’ included ‘loss’ and that economic loss caused by contamination resulting from the escape of oil was recoverable in principle. Since the escape of oil was the effective cause of the loss of profit and was clearly foreseeable, the claimant was entitled to recover. The International Fund accepted most of this argument but contended that although the claimant’s loss of profit had been foreseeable, it flowed from the interruption of a business relationship with the primary victims of the contamination and as a matter of law, a secondary or relational claim was not recoverable. The High Court agreed. Local fishermen would be able to recover under the 1995 Act as they had a direct economic interest in the contaminated waters. However, the claims of traders with economic interests arising out of contracts with these fishermen would be too remote, being secondary, derivative, relational and/or indirect. Any other conclusion would mean the Fund being exposed to an indeterminate number of claims along an infinite chain. 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.
(Alegrete Shipping Co Inc and Another v The International Oil Pollution Compensation Fund 1971 and Others (The Sea Empress), [2002] All ER (D) 478 (May))

CITES

Greenpeace sought by way of judicial review a declaration that the Government’s decision to allow a cargo of Brazilian mahogany to be imported into the UK was unlawful. It contended that the importation contravened EU Regulation 338/97 which implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973. Regulation 338/97 provides that imports of mahogany from Brazil into the EU must be accompanied by documentary evidence, in the form of an export permit issued by a designated competent authority, that the specimens have been obtained in accordance with national nature conservation legislation. In this case, as a result of ongoing litigation in Brazil, an export permit had been issued by the competent authority but under the pressure of a court order. Greenpeace’s application for judicial review was refused and the pressure group appealed successfully, the Court of Appeal ruling that a substantive judicial review application should proceed in that Court. The issue to be decided by the Court of Appeal was whether the authorities in the importing country (in this case the Secretary of State and H M Customs and Excise) were obliged to accept a valid export permit and allow the importation even though they knew that the Brazilian competent authority issuing the permit was not satisfied that the specimens had been obtained without contravening national laws. The Court of Appeal ruled that it was not unlawful in these circumstances for the UK authorities to accept the export permit as documentary evidence of compliance unless and until that permit was unilaterally revoked or cancelled by the issuing authority or it was set aside by agreement or a court order. Further, it was not necessary for the UK authorities to check the correctness or validity of the decision of the issuing authority that the necessary conditions for the granting of the export permit had been met. Their only concern was to ensure that the export permit complied with the documentary evidence requirements of CITES. It was lawful therefore for H M Customs and Excise to refuse to detain the cargo pending the outcome of the litigation in Brazil. The application for judicial review was dismissed.
(R (on the application of Greenpeace Ltd) v Secretary of State for the Environment, Food and Rural Affairs and Another, Times Law Reports, 26 August 2002)

Psychiatric injury

The claimant worked in the social services department of Surrey County Council. In March 1996, she was absent with a stress related problem but asked that the medical note provided to her employer record that she had been suffering instead from neuralgia. In August, just prior to a holiday, the claimant spoke to her supervisor and made it known that she was having difficulty in dealing with the pressures of her work. The supervisor’s response was that alleviating measures would be in place on her return to work. The promised measures had not been implemented by that time however and the claimant left work permanently because of a stress related illness. In a legal action for damages, she alleged that the Council had been negligent in failing to take reasonable care for her health. The claimant contended that she had warned her employer of the possibility of injury in March and August and that the Council’s failure to implement the alleviating measures was the substantial cause of her illness. In response, the Council argued that whilst lack of funding had put pressure on its employees, there had been nothing sufficient to put it on notice that there was a particular risk to the claimant’s health before August because she had previously disguised her stress related illness. In the High Court, it was held that Surrey County Council had not breached its duty of care to the claimant. In cases involving psychiatric injury arising from stress at work, the threshold question was whether such harm to a particular employee was reasonably foreseeable. Unless there was a real risk of breakdown which the employer ought reasonably to have foreseen, and which they ought properly to have averted, there could be no liability. There was a crucial difference between general knowledge that stress could cause illness and knowledge that a real risk had arisen in a particular case (Hatton v Sutherland [2002] 2 All ER 1). On the evidence, although the Council had known that the workload was a general problem, there had been nothing before August 1996 to alert it to a specific risk to the claimant’s health. When health fears were voiced in August, the Council believed these to relate to concern for the future if work patterns did not change and not existing injury. It had been entirely reasonable for the supervisor to defer any specific action until after the claimant’s holiday. As there had been no breach of duty, the claim for damages was dismissed.
(Pratley v Surrey County Council, [2002] All ER (D) 510 (Jul))

Liability of HSE

Following the Ladbroke Grove rail disaster, Thames Trains Ltd sought contribution from the Health and Safety Executive (“HSE”) in respect of personal injury and fatal accident claims by victims or their families. The train company pleaded that, through the Railway Inspectorate, the HSE had specific responsibility for the railway infrastructure and its safety. It therefore owed specific statutory duties, a general common law duty of care and, by its conduct, including its alleged close involvement and knowledge of the signalling at the Ladbroke Grove junction, had assumed a duty of care at common law towards the victims. The HSE applied for this claim to be struck out on the basis that there was no reasonable prospect of establishing that it owed statutory and/or common law duties to rail users or workers giving rise to tortuous liability for breach. The High Court held that the HSE did have a specific purpose to safeguard against personal injury. It was alleged but not admitted that the defendant had known about the dangerous signalling system for a period of three years and that it had failed to take adequate action. On this evidence, the Court was not satisfied that the victims would not have a realistic prospect of success if they sued the HSE. The regulator’s application was dismissed.
(Thames Trains Ltd v Health and Safety Executive, [2002] All ER (D) 317 (Jul))

Extent of employer’s responsibility

An employee with Goodyear Great Britain Ltd had a mild constitutional predisposition to asthma, a fact initially unknown to both parties. Soon after beginning work on a paint line, the employee complained of severe headaches to the company’s medical team. A memo stating that he should not work with paint was sent to the employee’s manager but never arrived. As a result, the employee continued to work on the paint line: after collapsing, he was formally diagnosed with occupational asthma caused by irritant fumes at work consequent upon his constitutional predisposition. He was certified unfit to work. Damages were awarded against Goodyear by the High Court which held that the employer was obliged to remove the employee from the paint line. Goodyear appealed, arguing that it was not under a duty to dismiss an employee from work which could ordinarily be safely undertaken merely because of some susceptibility on that employee’s part. Rather, it was for the employee to decide whether or not to take the risk of continuing with his job (Withers v Perry Chain Co Ltd [1961] 3 All ER 676). The Court of Appeal dismissed the appeal. It was recognised that conflicting principles were at play in such cases: whilst restricting the freedom of the individual was foreign to the whole spirit of the common law, employers must clearly bear some overall responsibility for the health and safety of their workforce. The principal consideration in determining whether a particular case fell within the principle established in Withers was the actual nature and extent of the known risk. Cases would arise where despite the employee’s desire to remain at work, notwithstanding his recognition of the risk involved, the employer would nevertheless be under a duty to dismiss him for his own good to protect him from physical danger. That duty arose in this case.
(Coxall v Goodyear Great Britain Ltd, [2002] All ER (D) 303 (Jul))

Manual handling

Mr O’Neill, a warehouse manager whose work involved the stacking and moving of goods, was carrying a microwave oven when he responded to a call from a colleague. He twisted his body around without moving his feet and injured his spine. In proceedings against his employer DSG Retail Ltd, he alleged that the company had been negligent and in breach of regulation 4(1)(b)(ii) of the Manual Handling Operations Regulations 1992 which requires employers to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable, including the provision of training on manual handling. DSG Retail had implemented a training programme advising on the risks of twisting the body whilst carrying heavy loads and the recognition of the risks of instinctive reactions but Mr O’Neill had not received this training. His claim for damages was dismissed, the judge concluding that the circumstances in which the accident had happened were wholly unforeseeable. The cause of the accident had been Mr O’Neill’s wholly unexpected instinctive reaction to his colleague’s call and not a lack of training or a breach of the Regulations. The claimant appealed. Applying Koonjul v Thameslink Healthcare Services [2000] PIQR P123, the Court of Appeal held that the risk of injury to an employee had to be a real risk, that is a foreseeable possibility of injury and certainly nothing approaching a probability. When assessing risk, the employer must take into account that employees would not always behave with full and proper concern for their safety and that the particular operation being carried out in the context of the particular place of work and the particular employee had to be considered. This did not however involve examining the precise circumstances of what occurred in each accident as this would mean that the Regulations might not apply in cases where an employee had acted negligently and restrict their application unduly. These questions concerned the nature of the task and the risks involved and how it was likely to be performed rather than how it was in fact performed. In this case, DSG Retail’s failure to train Mr O’Neill properly gave rise to a foreseeable possibility of injury in relation to the task he was performing. Further, there had been a breach of regulation 4(1)(b)(ii). The risk of an employee twisting whilst carrying a load was an event which was reasonably foreseeable and one which DSG Retail had itself foreseen in its training programme. The accident was therefore reasonably foreseeable: on the balance of probabilities, DSG Retail’s failure to train Mr O’Neill was the cause of the accident because had he been trained, he would have paused to think before responding instinctively to his colleague’s call. The appeal was allowed.
(O’Neil v DSG Retail Ltd, Times Law Reports, 9 September 2002)

Environmental impact assessment

Neighbours of a proposed egg production unit applied for judicial review of South Cambridgeshire District Council’s decision to grant planning permission without the carrying out of an environmental impact assessment (“EIA”) under The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The Council considered that an EIA was not mandatory as the proposed development came within schedule 2 of the Regulations and would only require EIA if likely to have significant effects on the environment by virtue of its nature, size or location etc.. Further, it believed that all relevant matters would be covered in sufficient detail in the planning permission without EIA. Under the Regulations, a written screening opinion was necessary to determine whether the proposal required EIA. This should also have been placed on the local authority’s public register. Documents placed before the Council’s planning committee referred to a screening opinion and a screening summary table was made available via the register. This did not however state that a screening opinion had been made or what it was. During the judicial review proceedings, the High Court considered, inter alia, whether the Council had given a screening opinion and whether it had erred in its approach to the 1999 Regulations. On the evidence, Court found that the Council had failed to appreciate that the consideration given to whether a proposal is an EIA development should be formally recorded and made available to the public. The Council had also erred in believing that an EIA was unnecessary because sufficient information would be provided in the planning application. Further, it should not have proceeded on the basis that although the development would have had a significant environmental impact, that impact would be reduced to insignificant levels by the implementation of mitigating measures, rendering EIA unnecessary. The application for judicial review was allowed.
(R (on the application of Lebus) v South Cambridgeshire District Council, [2002] All ER (D) 96 (Aug))

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