Environmental Case Update
STEPHEN TROMANS
39 Essex Street
Nuisance and human rights: Marcic revisited
The case of Hanifa Dobson & Ors v Thames Water Utilities Ltd [2007] EWHC 2021
(TCC) concerned a class action in relation to odours and mosquitoes from a sewage
treatment works operated by Thames Water. Ramsey J sitting in the Technology and
Construction Court gave judgment on a number of preliminary issues. The Claimants
argued that odours and mosquitos from the sewage works had caused a nuisance as a
result of Thames Water’s negligence and that the sewerage undertaker was liable for
damages for nuisance, negligence, and under the Human Rights Act 1998 for breach of
the Claimants’ human rights. A group litigation order applied to the proceedings.
The Claimants were divided into two categories: those who occupied properties as
owners or lessees and those who occupied without any legal interest in the properties.
Thames Water raised various threshold defences to the claims. The water services
regulation authority, Ofwat, intervened in the proceedings on the ground that they raised
matters that concerned the duties of a sewerage undertaker under the Water Industry Act
1991 and the extent to which remedies involving Ofwat precluded other causes of action.
The preliminary issues were divided into three categories:
•
•
•
the extent to which a common law remedy existed, given the statutory provisions
in s.94(1) of the 1991 Act pursuant to which sewerage undertakers are under a
duty to make provision for the emptying of sewers and such further provision
…’for effectually dealing, by means of sewage disposal works or otherwise, with
the contents of those sewers’.
damages;
limitation.
Thames Water contended that complaints about odour or mosquitoes from the sewage
works were complaints of a failure of its duties under s.94(1)(b) of the 1991 Act to
"effectually deal" with the contents of sewers at the works or a failure to treat wastewater
received and discharged by the works in accordance with the Urban Waste Water
Treatment (England and Wales) Regulations 1994 and that such failures were enforceable
under s.18 of the 1991 Act by Ofwat, so that no common law remedy or remedy under
the 1998 Act lay to enforce those duties.
Ramsey J held that where the contents of a sewer when emptied at a sewage treatment
works caused odours and mosquitoes then the contents had not been effectually dealt with
under s.94(1)(b) of the 1991 Act. The obligation to “effectually deal” with the contents of
the sewers was not limited to getting rid of them; what has to be done is a matter of fact
and degree, having regard to requirements of environmental protection. Accordingly, in
respect of odours from the sewage works and mosquitoes that lived and bred there as a
result of sewage, the Claimants were seeking to enforce duties under s.94(1)(b). Because
of this they were precluded from bringing a claim in nuisance based on the principle in
the absence of any negligence by Thames Water. The issue of making effective provision
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at the works to avoid odours raised the same issues of capital expenditure as the provision
of more or larger sewers in Marcic.
The next issue was where negligence was involved – the claimants argued that on the
basis of Allen v Gulf Oil Refining [1981] AC 1001 any immunity conferred by statute
did not extend to cases where the statutory powers were exercised with negligence, i.e.
without reasonable care and regard for the interests of other persons. The decision of the
House of Lords in Marcic v Thames Water Utilities [2004] AC 42 and s.18(8) of the
1991 Act did not prevent certain causes of action in nuisance based on negligence
existing alongside the duties under the Act. There was a distinction between matters that
would fall within s.94(1) and were actionable solely under s.18 by Ofwat and matters that
were actionable apart from the existence of any statutory duty. That boundary might be
difficult to draw and might depend on the distinction between "policy" and "operational"
matters. The judge referred to the distinction in s. 94 between providing sewers and
cleansing and maintaining existing sewers.
Causes of action based on the operation or operational management of the works were
likely not to be precluded. The issue was whether the exercise of adjudicating on the
claim would be inconsistent or in conflict with the WIA statutory process. The Marcic
principle would not preclude the Claimants from bringing a claim on the basis that
Thames Water failed or neglected to press for capital funding for odour related
expenditure. This would not be inconsistent with the statutory scheme but would raise
issues of causation and remoteness as to what would have happened under that scheme
had such application been made. In general, the ability to fund works would not provide a
defence to an allegation of negligence.
On a separate issue, the judge applied the House of Lords ruling in Hunter v Canary
Wharf Ltd [1997] AC 655 in holding that damages for nuisance were based on the loss
of amenity value of the property and did not take into account the number of people
living in that affected property. That raised the possibility that damages for nuisance
might not accord "just satisfaction" to the individual victims of an unlawful act that
breached their human rights as required by s.8(3) of the 1998 Act. Where the court
awarded damages for nuisance to those with a legal interest in the property, that would
usually be just satisfaction to partners and children, and unless there were particular
circumstances there would not be any further damages. If, taking into account the
measure of damages for nuisance and the availability of other remedies, damages under
the 1998 Act were necessary to afford just satisfaction, they might include damages for
inconvenience, mental distress and physical suffering, taking into account all the relevant
circumstances, including factors such as age, the victim's state of health and the duration
of the situation complained of, together with any special damages, Fadeyeva v Russia
(55723/00) (2007) 45 EHRR 10 was considered.
In determining a limitation issue under s.7(5)(b) of the 1998 Act the court should exercise
its discretion, by analogy with the Limitation Act 1980 s.33 (i.e. whether it would be
equitable to allow the action to proceed having regard to the extent to which prejudice
would be caused to both claimant and defendant), having regard to all the circumstances
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of the individual claimant, which included the circumstances of the group in a group
action, Cameron v Network Rail Infrastructure Ltd (formerly Railtrack Plc) [2006]
EWHC 1133 (QB), [2007] 1 WLR 163 was applied. The six year limitation period under
the Limitation Act 1980 may be a relevant factor, and the court may take into account the
period of time when a claimant was subject to interference with his or her rights.
Mobile phone masts and human rights
The case of Hans Gaida v. Germany (Application No: 9355/03 European Court of
Human Rights 3/7/2007) concerned a complaint under the European Convention on
Human Rights Article 8, that radiation emanating from a mobile phone base station had
seriously damaged the applicant's right to a private and family life. A regional authority
had granted a telecom company a building licence that enabled it to install a mobile
phone base station at a distance of approximately 20 metres from Mr Gaida’s home in
Germany. His plot of land was exposed to a certain degree of radiation emanating from
the base station. A regional authority refused his request to have the licence revoked. It
noted that the radiation emanating from the base station complied with prescribed
standards and that, in the absence of conclusive scientific evidence, it had to be assumed
that the base station posed no health risks. Mr Gaida then lodged a claim with an
administrative court, alleging that his health problems as well as the breeding anomalies
of his poultry had been caused by radiation emanating from the base station. He
submitted several scientific reports and requested the court to hear expert opinion on the
causal link between his diseases, those of his poultry and the radiation emanating from
the base station and as to whether the safety guidelines were sufficient to protect
neighbours from harmful effects of radiation. The administrative court, holding that the
domestic law did not require it to take into account unconfirmed scientific findings,
rejected his claim. The Court of Appeal and Constitutional Court refused his appeal.
It was held that the building licence was issued in accordance with the law and that the
emanations from the base station stayed well within the limits of the pertinent safety
guidelines issued by the state. The granting of the impugned licence pursued a legitimate
aim, namely the interest in the economic well-being of the country, as well as the interest
of the general public to use mobile phone technology. Whilst Mr Gaida had submitted a
number of scientific reports indicating that there existed a controversial scientific debate
as to possible harmful effects of radiation emanating from mobile phone base stations, he
conceded that currently there existed no conclusive evidence as to the harmfulness of
radiation that stayed within the limits permitted by the pertinent guidelines, which were
based on the concurring recommendations issued by several national and international
advisory bodies. There had been no fundamental procedural flaws either in the
preparation of the relevant safety guidelines or in the administrative court proceedings. In
the circumstances, the authorities had not overstepped their margin of appreciation.
Accordingly, Mr Gaida’s complaint under Article 8 was manifestly ill-founded and was
rejected under Article 35(2) The Court also rejected an argument by Mr Gaida that the
domestic courts' refusal to take evidence in his case was arbitrary and a breach of Article
6.
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Statutory nuisance and noise
The long running saga of nuisance from the Alton Towers theme park was the subject of
a mainly unsuccessful appeal to the Administrative Court against the terms of a statutory
nuisance abatement order. In Roper v. Tussauds Theme Parks Ltd [2007] EWHC 624
(Admin); [2007] Env LR 31 the appellants were residents near to Alton Towers and
brought proceedings under section 82 of the Environmental Protection Act 1990 as
“persons aggrieved” by a statutory nuisance in the form of noise from the theme park and
from concerts held there. The magistrates made an abatement order and convicted the site
operator and imposed a fine of £5,000. The operator appealed against the conviction, the
fine, and the abatement order imposed, and the Crown Court upheld the conviction, but
reduced the fine and imposed new terms for the abatement order.
The appellants then appealed against the revised order by way of case stated mainly on
the grounds that: (1) the maximum noise level imposed of 40db was irreconcilable with
the facts found and was illegitimately influenced by commercial considerations; (2) the
inclusion of the Noise Council’s Code of Practice on Environmental Noise in the
abatement order had been inappropriate; and (3) the exclusion of further evidence from
the appellant’s expert following two rounds of expert report evidence had been incorrect.
The appellants submitted that consideration of commercial issues was inappropriate at the
stage at which the court was performing its statutory duty to make an abatement order.
These were argued to only be relevant where there had been a breach of an abatement
order and a defendant had a statutory defence to a prosecution for such a breach where it
proved that “the best practicable means” had been used to prevent the effects of the
nuisance. The appellants also raised additional issues including whether the abatement
order had been defective in imposing obligations requiring the performance of specific
works to reduce noise levels which the appellants had no means of monitoring, and
whether the order applied to the daily operation of the site on days when there were
concerts or fireworks displays.
Wilkie J dismissed the appeal in the main, finding that the Crown Court had not taken a
decision which was irreconcilable with its findings of fact or illegitimate in having regard
to commercial considerations. The noise limit of 40db had been set having regard to the
range of relevant guidelines, and had been appropriate in view of the circumstances
including the character of the area. Whilst that level had been characterized as one at
which complaints could be expected, the court had found that local residents would have
to expect some inconvenience in the form of noise from the theme park. Rather than
being precluded from having regard to commercial considerations, the court had been
obliged to have regard to all relevant circumstances in ensuring that the discharge by
them of their obligation to make an abatement order which had potential penal
consequences was proportionate and no more that was reasonably necessary to achieve
the statutory requirement. In the present case, the court had, in fact, rightly found that the
evidence of any adverse commercial impact was exiguous and indirect and that the
operator would have no difficulty in complying with its terms. The abatement order could
not be characterised as irreconcilable with abatement of the nuisance, irrational, or the
decision of a tribunal which must have taken leave of its senses, and so it followed that
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the decision of the court, in that regard, had not been erroneous in law. There had not
been any error of law in failing to provide for a means of the appellants to monitor the
specific works required, and the effective and practical enforceability of the order was not
diminished by the absence of any monitoring or inspection regime in respect of those
works. Wilkie J found that it was clear that the terms of the order were cumulative so that
the requirements as to daily operations would apply even when concerts and firework
displays were occurring.
As to the reference to the Noise Council’s Code of Practice, an abatement order was
required to be clear and enforceable, but the terms of the Code set noise standards by
reference to the number of events per year, as well as the nature of the venue. This
presented an inbuilt element of uncertainty and the court had erred in law in not setting
the noise levels by providing that the musical noise levels should not exceed those
defined by the Code as it applied to all venues where concert days per calendar year
numbered 4-12, and that this should apply regardless of the number of concerts which
were in fact held during a calendar year. With that clarification the abatement order could
be made effective. Whilst the Code did not identify a specific maximum noise level, it did
provide the means by which such maximum noise level could be calculated, and coupled
with clarification that the abatement order would also operate on the same occasions in
respect of the daily operations at a maximum of 40db, this made the order both workable
and sensible. Finally, the court had been entitled to call a halt to the process of repeated
further tranches of expert evidence, on case management grounds and in the interests of
fairness.
The case is also relevant on the issue of how to approach findings of fact in the case
stated procedure. Normally the facts found will be set out in the stated case, and the
Divisional Court will be confined to those facts. In this case unusually, various experts’
reports were annexed to the statement of case. In a preliminary hearing, Collins J held
that as an exceptional matter reference could be made to these documents, but only so as
to explain and place in context the findings stated in the case, and not to contradict them.
Wilkie J agreed with that approach.
The case illustrates again the difficulties concerning noise nuisance, there being generally
no objective standard, and the court must do the best it can on all the evidence to
determine whether a nuisance exists: see also R (Hackney LBC) v. Rottenberg [2007]
EWHC 166 (Admin); [2007] Env LR 24 (noise from synagogue; court not bound to agree
with assessment of expert witness).
Another useful case to emerge in 2007 was Manley v. New Forest DC [2007] EWHC
3188 (Admin), part of the long-running saga of the aptly-named “Howling Dog Kennels”,
Hythe. The Manleys kept 24 huskies, which engaged in “spontaneous pack howling”,
constituting a nuisance. In the Crown Court, it was found that the Manleys were not
employing best practicable means to abate the nuisance. Essentially, the Manleys’ case
was not to show what they were doing was BPM (they were doing nothing), but rather to
try and shoot holes in the suggestions made by the local authority as to what could be
done. The Divisional Court emphasised that such an approach was contrary to the
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Statutory Nuisance (Appeals) Regulations 1995, which place the burden on the appellant
to show that at the time of the notice, BPM were in use. Although the Crown Court
found that the premises were business premises (and hence BPM was relevant) the
evidence had showed that the business did not make a profit. Building new kennels to
reduce noise would cost between £25,000-£40,000, which the Manleys said was
impracticable. The Divisional Court held that cost was relevant to practicability, but that
the decision of the Crown Court that those measures were practicable could not be said to
have been wrong in law. The lack of profit had to be judged in the context of the
numbers of huskies the Manleys had chosen to keep.
Nuclear build and consultation
In R (on the application of Greenpeace Limited) v Secretary of State for Trade &
Industry [2007] EWHC 311 (Admin); [2007] Env LR 29 Mr Justice Sullivan held that a
consultation process carried out by the DTI on the use of new build nuclear power plants
for electricity production was procedurally unfair and a breach of a legitimate expectation
that there would be the fullest consultation on that particular matter. Greenpeace had
applied to quash a decision of the DTI to support nuclear new build as part of the United
Kingdom's future electricity generating mix. In 2003, the Government published a White
Paper on the future of energy production in the UK that addressed the possible use of new
nuclear power plants to produce electricity. The White Paper indicated that the
Government was not minded to support new nuclear build. It also indicated that there
was to be "the fullest public consultation" before the Government reached any decision to
change its policy.
In 2006, the Secretary of State announced a review of the White Paper and issued a
consultation paper for an energy review on the securing of long term affordable energy in
the UK including the use of electricity generated from nuclear power new build.
Responses on energy policy were sought from all interested parties including members of
the general public. A consultation period of 12 weeks was provided for. The Secretary
of State subsequently published an energy review report in which it was announced, inter
alia, that he had decided to support nuclear new build as part of the UK's future electricity
generating mix.
Greenpeace contended that, given the express promise that there would be the fullest
public consultation before the Government reached any decision to change its policy not
to support new nuclear build, it and other members of the public had a legitimate
expectation that there would be such consultation before a decision such as that
challenged was implemented and that that expectation had been breached because the
role of the consultation paper in the consultation process was that of an "Issues Paper"
seeking consultees’ views on the issues to be addressed before a policy proposal and was
not a consultation on the principle question namely whether new nuclear build should be
supported. In addition there was a paucity of information or policy proposals on which
consultees could comment.
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Sullivan J held that the decision was amenable to judicial review. The starting point to be
taken was that where a public authority had issued a promise or adopted a practice which
represented how it was proposed to act in a given area the law would require the promise
or practice to be honoured unless there was a good reason not to do so: Nadarajah v
Secretary of State for the Home Department [2005] EWCA Civ 1363 , Times,
December 14, 2005 was applied. While the decision could be fairly described as one
which was dealing with a "high level strategic issue", the promise was given at the
highest level in a Government White Paper and it would be curious to say the least if the
law was not able to require the Government to honour such a promise absent any good
reason for it to resile from it and there was no such good reason in the instant case.
Moreover in the development of policy in the environmental field consultation was no
longer a privilege to be granted or withheld at will by the executive. The Government
was a signatory to the Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters 1998 (the Aarhus
Convention) which required the Government to provide opportunities for public
participation in the preparation of policies relating to the environment. Given the
importance of the decision under challenge it was difficult to see how a promise of
anything less than the "fullest public consultation" would have been consistent with the
Government's obligations under the Aarhus Convention. Further whilst it might be said
that the decision was not strictly a statutory decision but was a step in the formulation of
Government policy the decision was taken at a crucial stage in the formulation of
Government policy and amounted to a material consideration to which both local
planning authorities and the secretary of state would have to have regard in any
applications for planning permission for nuclear power plants and as such was open to
judicial consideration: see R (on the application of Medway Council & Kent County
Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin).
The consultation process was very seriously flawed, procedurally unfair and a breach of
Greenpeace’s legitimate expectation that there would be the fullest consultation. The
purpose of the consultation document was unclear. The amount of information provided
in the consultation document was consistent with the document being an Issues Paper,
namely a preliminary stage in the consultation process, which was to be followed by a
consultation paper containing proposals on which consultees could make informed
comments. As an Issues Paper the consultation document was satisfactory but as a
consultation paper on an issue of such importance and complexity it was manifestly
inadequate. It contained no proposals as such and even if it had the information given to
consultees, in particular on the critical issues of building costs and nuclear waste, was
insufficient. There was effectively no discussion of the public considerations that would
apply to nuclear new build. The period given for consultation was inadequate and it could
not be said that following the consultation period the decision made by the secretary of
state would have been reasonably foreseeable by those consultees who took the
consultation document at face value and relied upon it: see R v North and East Devon
Health Authority Ex p Coughlan (1999) LGR 703, R (Edwards) v Environment
Agency [2006] EWCA Civ 877 , (2007) Env LR 9.
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Having found the consultation process to be unlawful, Sullivan J considered the nature of
the remedy to be granted and in particular whether the appropriate remedy was an order
quashing the decision to support nuclear new build or a declaration that the consultation
process giving rise to the decision was procedurally unfair. Sullivan J accepted the
argument that the right approach in principle to a policy document like the energy review
is not to quash on the basis the Court cannot quash a state of mind. It could instead
declare that the view expressed in the July 206 document was arrived at after a process
which was procedurally unfair. The judge did not consider it necessary to include any
further detail in the order as to how the Secretary of State should proceed on the basis the
judgment itself provided the necessary detail.
Having granted the Government permission to appeal on the grounds of the importance of
the issues under debate rather than on the ground that the appeal appears to have a real
prospect of success, the judge considered that there should be some costs protection for
the claimant. He gave the Secretary of State permission to appeal on terms that the costs
order in the first instance court was not disturbed. In the event there was no appeal.
Air Passenger Duty and Human Rights
In R (on the application of Federation of Tour Operators & Others) v HM Treasury
& Others [2007] EWHC 2062 (Admin) the Administrative Court has dismissed an
application for judicial review which raised issues of domestic, international and
European law, including Human Rights and the freedom of Parliament under the Bill of
Rights. The claimants argued that an increase in Air Passenger Duty (“APD”) was
unlawful and that the duty, introduced by section 28 of the Finance Act 1994, had always
been unlawful. Air Passenger Duty was payable by the operator of the aircraft and
airlines’ standard terms normally permitted the operator to recover the duty, and any
increase in it, from the passenger, which they normally did. Where tickets were
purchased by a tour operator as part of a package holiday, the contractual arrangements
normally provided for the cost of the duty to be passed on to the tour operator, whose
ability to pass on the cost of the duty, or any increase, was constrained by the price
revision provisions of the Package Travel, Package Holidays and Package Tours
Regulations 1992. As part of the Pre-Budget Report in December 2006 the government
announced the doubling of the duty to apply to flights seven weeks later. Despite
notification of the problem by the claimants, the increase was introduced through the
Finance Act 2007. The claimants brought proceedings on the grounds that: (a) that the
imposition of the Duty was in breach of Article 15 of the 1944 Chicago Convention on
International Civil Aviation, which had been incorporated into domestic law by the EU
legislation on the creation of a Single European Sky; (b) that the increase in the Duty,
imposed in the manner in which it was, infringed their rights under Article 1 of the First
Protocol to the European Convention on Human Rights; and (c) that the imposition of
APD or its increase is and was contrary to Article 49 of the European Treaty.
Stanley Burnton J refused the application. Having consulted a range of sources regarding
its interpretation, he found that taxes such as APD were not within the scope of Article 15
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of the Chicago Convention. The jurisprudence of the European Court of Human Rights
had established that rights under Article 1 Protocol 1 could be applied to legislative
provisions for the payment of taxes and that it was for the Government to demonstrate
satisfaction of the requirement of proportionality between legitimate aim and means. The
Treasury accepted that the imposition of the financial burden of the increased duty
regarding passengers who had booked their tour before the increase was announced
entitled the claimants to invoke Article 1 Protocol 1. The claimants argued that the
increase had retrospective effect, making the requirement of proportionality particularly
stringent. In support of the claim that the Treasury was aware of the alleged retrospective
effect, evidence was referred to which had been given at Parliamentary Committees. The
Speaker of the House of Commons objected to this being received by the court on the
grounds that it would be a breach of Article 9 of the Bill of Rights and the wider principle
of Parliamentary privilege. Stanley Burnton J found it unnecessary to rule on
admissibility as he did not consider the evidence to advance the claimants’ case. The
objectives of APD were to raise revenue and to reduce travel by air. The second of those
was lacking in relation to passengers who had booked tours before the increase. Where
one of the objectives was to obtain revenue, it was very difficult to require that the means
were no more was necessary to accomplish the objective.
Stanley Burnton J considered that the Article 1 Protocol 1 right was ‘less important’ than
some other Convention rights, such as those under Articles 2, 3 and 5 and in cases such as
the present one the Government would be given an appropriate degree of latitude. In
order to challenge successfully such a measure, a claimant would have to show that the
legislature’s assessment had been “devoid of reasonable foundation”. A measure was
retrospective in its effect to the extent that it affected the fulfilment of transactions
concluded before its announcement, and the increase in APD was practically a
retrospective measure, since it was payable on flights that had already been contracted
when it was announced. That was an important consideration but did not render a
measure incompatible with Article 1 Protocol 1. The hurdle for the claimants in respect of
Article 1 Protocol 1 was very high; they had to demonstrate that the decision to increase
APD with effect from 1 February 2007, without any concession in relation to bookings
made before the announcement of the increase, “was devoid of reasonable foundation”.
While that decision was open to criticism, having been made in the first place without
consideration of the effect of the Package Tour Regulations, and with a retrospective
effect, and it may have been adhered to under a mistaken view of the difficulties of
exempting tour operators’ existing bookings, it was impossible to conclude that the
measure was devoid of reasonable foundation. The revenue involved was considerable,
and the burden on the claimants was an incident of their business arrangements. The
requirement of proportionality was satisfied. The arguments as to breach of Article 49 EC
were dismissed. Even if there had been infringement, APD could be justified as a
proportional measure aimed at reducing the damage caused to the environment by air
travel, and as a revenue raising measure.
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Human rights, environmental protest and racial issues
One of the implications of the new government White Paper on planning is the potential
for objectors to major infrastructure proposals having to resort to protests to redress the
gap in their opportunities to make representations in the new streamlined processes which
the White Paper envisages for such developments. In this context the recent case of (1)
Heathrow Airports Ltd (2) Mark Bullock v Joss Garman & 6 Ors (6 August 2007,
Swift J) is of relevance. In this case the Queen’s Bench Division granted an injunction to
prevent protests at Heathrow airport on the basis that they would have serious and
damaging consequences on the running of the airport and would increase the risk of a
terrorist attack on the users of the airport.
The background facts of the case were as follows: The first applicant airport operator
Heathrow Airport Ltd (“HAL”) and the second applicant managing director of HAL
applied for an injunction restraining the first to fifth respondents from staging a
demonstration at Heathrow airport. A third party organisation had intended to organise a
camp near the airport for a period of eight days at which issues of climate change, in
particular the environmental impact of airports, were to be addressed. The applicants
were of the view that the camp would result in protests in the form of direct action
occurring at the airport. The third to fifth respondents represented various unincorporated
associations that opposed the expansion of airports, in particular Heathrow airport. The
first, second and fourth respondents gave individual undertakings to the court that they
would not participate in any form of direct action protests at the airport. The applicants
argued that it was appropriate to grant an injunction prohibiting the first to fifth
respondents or certain unincorporated associations that they represented or individuals
connected with those associations from protesting at the airport pursuant to (a) the
Protection from Harassment Act 1997 and (b) HAL's byelaws or torts of trespass and
nuisance.
Swift J held that:
(1) It was not appropriate to grant an injunction under section 1 of the Act. He found that
there was insufficient evidence before the court to suggest that the unincorporated
associations condoned behaviour amounting to harassment. Harassment could not be
confined to a fear of violence or just to alarm or distress; where the line was to be drawn
depended on the particular circumstances of the case. In this particular case the fact that
any protests might cause annoyance to passengers using the airport did not necessarily
amount to harassment, R v Jones (Annwen) [2006] EWCA Crim 2942 and R (on the
application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55,
[2007] 2 WLR 46 were considered.
(2) Nonetheless and in all the circumstances, even applying the highest civil test, the
balance of convenience did lie in favour of granting an injunction. Unlawful direct action
protests at the airport would have serious and damaging consequences on the first
applicant and on the users of the airport. In particular there was a risk that a terrorist
group might use the disruption caused by the protesters to perpetrate a terrorist act.
Accordingly it was appropriate to grant an injunction restraining the three individuals
who had given undertakings and the unincorporated association Plane Stupid or anyone
acting in concert with those parties from protesting at the airport.
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Kay Tabernacle v. Secretary of State for Defence [2008] EWHC 416 (Admin), is the
latest case to consider environmental protestors. In this case the Divisional Court
(Maurice Kay LJ, Walker J) has considered the issue in the context of protestors at a
nuclear weapons establishment and the lawfulness of a byelaw used to prevent protests.
Two interesting points emerge from the case. Ms Tabernacle claimed that provisions of a
byelaw promulgated by the Secretary of State were unlawful. She was a member of a
group that had been engaged in protesting at a nuclear weapons site. They camped on
land owned by the secretary of state on the second weekend of each month, held vigils
and meetings, demonstrated their views and handed out leaflets.
The Atomic Weapons Establishment Aldermaston Byelaws 2007 byelaw 7(2) made it an
offence for any person, within specified areas:
- to camp in tents, caravans, trees or otherwise,
- to attach anything to, or place any thing over any wall, fence, structure or other surface,
or
- to act in any way likely to cause annoyance, nuisance or injury to other persons.
Ms Tabernacle submitted that the provisions of byelaw 7 were invalid under the Human
Rights Act 1998. The provisions infringed Articles 10 and 11 of the ECHR which allow
for freedom of expression (art 10) and freedom of assembly and association (art 11) and
could not be justified under arts 10(2) and 11(2) because they were not properly
prescribed by law or because they were not necessary or proportionate. She also
contended that the byelaw was invalid at common law because there was a lack of
certainty in the words "camp", "annoyance" and "other surface" in byelaw 7 and further,
that it was irrational or unreasonable at common law to adopt an all-embracing ban under
preventing those lawfully visiting the areas from placing anything over any man-made
structure. The following legal principles were common ground:
- the Secretary of State for Defence was a public authority subject to the Human Rights
Act and byelaws (as secondary legislation) are subject to judicial review
- one of the consequences that an interference with a convention right is ‘prescribed by
law’ is that provision must not be so vague or imprecise so as to have unforeseeable
application
- the right to freedom of expression and freedom of assembly are closely linked when it
comes to justification. Prior restraint on freedom of assembly must be carefully
scrutinized. The test for assessing justification for the interference is laid down in the
case of R (on the application of Daly) v Secretary of State for the Home Department
(2001) UKHL 26, (2001) 2 AC 532. Is the legislative objective sufficiently important to
justify limiting the fundamental right? Is the measure designed to meet the legislative
objective rationally connected to it and are the means used to impair the right or freedom
no more than is necessary to accomplish the objective?
12
The Court of Appeal held that
(1) "Camp" was an everyday and intelligible word. On any basis, to live in a tent for the
duration of a weekend was to camp. The marginal cases were susceptible to judicial
resolution without infringing the principle of reasonable certainty. The questions became
firstly, had the secretary of state established that the prohibition on camping was
necessary in a democratic society and that it satisfied a pressing social need by reference
to the reasons set out in Art.10(2) and Art.11(2) and secondly, had he thus established the
proportionality of the prohibition, applying the test in Daly The answer to both questions
was in the affirmative. The prohibition only limited freedom of association and of
expression on the property of the secretary of state. A prohibition on camping only
impacted on one form of association and expression. The evidence of P and the matters
referred to enabled the Secretary of State to justify the prohibition on camping.
(2) "Annoyance" in byelaw 7(2)(j) was juxtaposed with "injury" and "nuisance". To
found a conviction, the victim must be reasonably annoyed. The Strasbourg court had
considered that "likely" to cause annoyance satisfied the requirement of reasonable
certainty, Chorherr v Austria (A/266-B) (1994) 17 EHRR 358 ECHR was considered.
By reason of s.3 of the 1998 Act, a court would be bound to interpret "annoyance"
compatibly with a defendant's Convention rights of association and free expression. That,
too, would ensure that only those reasonably annoyed could complain successfully.
Therefore "annoyance" passed the test of reasonable certainty. The proffered justification
of the inclusion of the word "annoyance" was on the basis of being "necessary...for the
prevention of disorder or crime..., for the protection of...the rights of others". Therefore
the provision did not prevent peaceful protest in the area. It restricted it as to its manner,
but in an unobjectionable and proportionate way.
(3) However the ban on attaching anything to, or placing anything over any wall, fence,
structure or any other surface in certain areas of a nuclear weapons site meant that a ban
was also placed on apparently innocuous activities, and as concerns about the premises
could be met in other ways that avoided such a prohibition, the provision infringed
common law principles and needed to be quashed. The areas concerned included
structures that had no relevance to national security. The words in byelaw 7(2)(g)
prohibited visitors from sitting on a fixed bench and placing a pullover over the seat or
the back of a bench, or a hiker from stopping at a monument and placing a rucksack on a
convenient surface at the base of the structure. There would need to be strong justification
for a ban on such apparently innocuous activities. Applying common law principles to
byelaw 7(2)(g), the concerns identified could be met in other ways that would avoid a
prohibition on innocuous activities. It followed that the broad prohibition in 7(2)(g)
infringed common law principles. Unless the secretary of state could advance good
reason for some contrary course, it was to be quashed.
The two interesting points that emerge from the judgment are as follows:
Firstly the Court recognised a distinction between interferences to freedom of assembly
and expression which ‘encroach on the essence of the right’ and interferences which
13
impact on the manner and form in which the rights are exercised. Particularly convincing
justification is required in relation to the former but the discretionary area of judgment
will be wider in the latter. This is thought to be the first time that the domestic Courts
have recognised the distinction, which is implicit in European caselaw. The Court of
Appeal treated the case as a case about the manner and form of the interference – i.e
whilst the protestors couldn’t camp they could engage in other forms of protest.
Secondly, the Court applied a test of proportionality (the Daly test) in assessing the
rationality of the byelaw as regards the provision about not attaching or placing any thing
over any wall, fence, structure or other surface, despite the fact that this fell to be judged
on pure domestic rationality grounds (and not Convention rights). Counsel for the
Ministry of Defence argued that the appropriate test was one of rationality (with its
higher threshold for judicial interference than proportionality) but this was rejected was
the Court and a proportionality test was applied.
An interesting Court of Appeal decision which has potentially wide implications is R
(Baker) v. Secretary of State for Communities and Local Government [2008] EWCA
Civ 141. A planning inspector had considered an appeal against refusal of permission for
a gypsy caravan site in the green belt and had concluded that the need for the appellant to
live there did not outweigh the harm to the green belt. It was argued the inspector had
acted in breach of the Race Relations Act 1976 section 71(1)(b) by failing to have due
regard to the need to promote racial equality of opportunity. It was held that the inspector
had been alive to the inequality of educational opportunity between the gypsy community
and the general community and had taken this into account. The 1976 Act did not impose
a duty to achieve equality, but rather to have due regard to the need to achieve its goals.
The failure to mention section 71 in the decision letter was not indicative of a failure in
that regard, but the Court felt it would be good practice to make reference to it in all cases
where it was in play.
Contaminated land
Having leapfrogged from the Administrative Court to the House of Lords, the “Transco”
case has provided a final decision on the question of liability for companies which are the
statutory successors of nationalized corporations under Part 2A of the Environmental
Protection Act 1990. R. (National Grid Gas Plc (formerly Transco plc)) v
Environment Agency [2007] UKHL 30 concerned housing development in the 1960s on
a former gasworks site where coal tar residues buried in tanks were discovered which
required significant remedial works. The claimant, National Grid Gas plc, was a company
which had been established as part of the corporate reorganization of British Gas plc a
few years after the privatisation of the Gas industry. British Gas had been the statutory
successor to the British Gas Corporation under a transfer scheme in 1986. The British
Gas Corporation had itself been the subject of a statutory transfer from organisation
including the East Midlands Gas Board (“EMGB”), which was one of the original
polluters of the site. In identifying the Class A liability group for those works, the
Environment Agency included the claimant on the basis that one or more of its statutory
14
predecessors (which included Transco and British Gas) had caused or knowingly
permitted the presence of the relevant substances through operating the gasworks. Other
potentially appropriate persons in the form of dissolved companies had been considered
not to be “found” for the purposes of the regime and the claimant sought judicial review
of the Agency’s determination that it was an “appropriate person”. The claimant based
this on three grounds:
1. that it had not itself caused or knowingly permitted the presence of the substances, and
so did not fall within section 78F(2);
2. that at the time of the various transfers of liability through the ‘chain’ of statutory
succession, no relevant liabilities had existed in law, or arisen in fact (there being no
evidence of a statutory nuisance, for example); and
3. even if there had been liability under any of the then applicable liability regimes,
transfers could only have been effective as to those liabilities and not that under Part 2A
which had not been in force at the time of any of the transfers.
The Administrative Court rejected these arguments: [2006] Env. L.R. 49 and considered
that the provisions of Part 2A should be given a purposive construction. Forbes J found
that Parliament’s intention had been clearly to place primary responsibility for the
remediation of contaminated land on the original polluters in the form of causers and
knowing permitters, rather than ‘innocent’ owners or the public purse, referring to the
Parliamentary record on the basis that legislative intent in section 78F(2) was ambiguous
or obscure. The only way of giving effect to the intent expressed in the record was to
construe the term “person” so as to include statutory successors as well as the original
polluter, so that liability passed to successors in title.
The House of Lords took the opposite view, finding the statutory language plain and
unambiguous, so that Pepper v Hart provided no authority for recourse to the
Parliamentary record, and that there was little if anything to support the imposition of
liability in Hansard in any event. The critical issue was considered to be the phrase
“immediately before” used in transferring liabilities under each of the statutory transfer
schemes. These provided that the successor would take over the liabilities of the
predecessor “immediately before” the transfer date. The unanimous view of their
Lordships was that as liability under Part 2A had not been created until many years after
the transfer dates, that liability had not existed (even as a contingent) “immediately
before” the transfers, and so could not have passed as part of the succession. Although
Part 2A was retrospective in the sense of creating potential present liability for past acts,
it did not create a deemed past liability for those acts. The claimant had not caused or
knowingly permitted the presence of the substances and the language used in section 78F
could not be construed so as to incorporate them within this definition.
The case considers a specific set of statutory transfer schemes and a large part of
judgment turns on the interpretation of the specific wording of these provisions, care
should therefore be taken in seeking to apply the decision in similar circumstances, such
as other statutory successions including local government reorganizations. The timing, as
well as the wording, of such schemes may be important. What is clear, however, is the
level of hostility which their Lordships had to the view that the “polluter pays principle”
15
underlying Part 2A (based upon the ‘retrospective falsification’ of the basis upon which
shares in British Gas plc had been acquired) could be used to override the plain meaning
of the succession provisions. The logic of the approach suggests that local authorities
may similarly be found not to be responsible for the acts of their statutory predecessors,
depending upon the precise terms of any transfer provisions. Lord Neuberger’s judgment
includes an obiter discussion regarding the sale and purchase of ‘assets’ and the
‘business’ or part of the ‘business’ of a polluting company, but without clear distinction
between asset, business and share transactions. The key consideration here appears to
have been a lack of connection between the successor company and the contaminated
land, so that the claimant company could be considered to have neither knowingly
permitted nor caused the presence of substances.
Waste definition – a glimmer of sense?
In OSS Group Ltd v Environment Agency [2007] EWCA Civ 611 the Court of Appeal
has now allowed an appeal against a decision of Burton J that it was not possible as a
matter of law to recover a non-waste fuel from waste lubricating oil. Burton J had held
that a test on the basis that waste ceased to be waste if a process had been carried out to
eliminate the danger typical of waste and the resulting product was no more polluting
than an equivalent natural product was unworkable and no substitute for the control
imposed by the European waste regime. Burton J was required to consider whether the
claimant companies (SRM and OSS) had to comply with the European waste regimes laid
down principally now in Directives 2006/12/EC, 2000/76/EC and 75/439/EEC. SRM and
OSS sold different products that were derived from waste, marketing their products on
the basis that they had ceased to be waste as a result of a particular recovery process.
SRM also used some of its products to burn as fuel. OSS's product was "clean fuel oil",
which it sold competitively to customers on the basis that it was not waste and the
customers would not have to be subject to the waste regime. The Environment Agency
directed that their practices fell within the European legislation relevant to waste. The
financial implications of making their businesses compliant with the legislation were
substantial.
The common issues between SRM and OSS that fell to be determined were (i) in what
circumstances did or could material that had become waste or was derived from waste
cease to be so if it was to be burnt as fuel; and (ii) whether waste ceased to be so when a
prior process was carried out for the purpose of rendering it safe to be burnt as fuel or
whether it could only cease to be waste when burnt. SRM and OSS submitted that their
businesses complied satisfactorily with the European jurisprudence and the proper
interpretation of the legislation, and specifically that their products had undergone a
"complete recovery operation" within the meaning of ARCO Chemie Nederland Ltd v
Minister van Volkshuisvesting (C-418/97 & C-419/97) [2003] Env LR 2, the result of
which was that they ceased to be waste and could be burnt in a non-waste compliant
plant. They took support from the tests proposed by Advocate General Alber in ARCO
that their products, or the recovery operation that produced their products, would not fall
foul of the legislation if they did not present a danger typical of waste and were no more
16
polluting than an equivalent natural product. They further argued, in policy terms, that if
waste could be recovered into a material that was environmentally satisfactory and as safe
as a natural product, its use should be encouraged and not penalised. The Agency
submitted that it would undermine the entire structure of the Directives if the careful
controls therein were replaced simply by a system of trust in relation to the compilation
of fuel specifications. In effect the Environment Agency ran a ‘floodgates’ argument on
the basis that any such system would be open to interpretation and abuse. It further
argued that the Directives were inconsistent with any suggestion that products derived
from waste could simply be safely burned and that Directive 2006/12, in particular,
established a hierarchy in which the prevention or reduction of waste production came
expressly before the encouragement of waste recovery. After Burton J accepted the
Environment Agency's submissions, and that the substances only ceased to be “waste” for
the purposes of Directive 2006/12 when actually burnt, OSS appealed on the limited issue
of whether a lubricating oil, not originally used as fuel, that became waste could
thereafter be burnt as anything other than waste. The Agency submitted that if the
intended end use was combustion, the materials remained waste until that was completed,
regardless of any prior treatment.
Carnwath LJ conducted an extensive review of the European and national case law on the
subject, but felt the European law as interpreted by the ECJ made it impossible to provide
a definitive ruling. He pointed to the logical incoherence of ECJ case law on the point,
with a fundamental problem identified as the Court’s professed adherence to the
definition in Directive 2006/12 Art.1(a), even where it could be of no practical relevance.
The subjective “intention to discard” could be a useful guide to the status of material in
the hands of the original producer but it was hard to apply to the status of material in the
hands of someone who bought it for recycling or reprocessing, or put it to some other
valuable use. In no ordinary sense was such a person discarding or getting rid of the
material, and his intention was precisely the opposite. The ECJ had understandably held
that a material did not cease to be waste merely because it had passed into the possession
of someone who intended to put it to a new use, but that should not be because it still met
the Art.1(a) definition in their hands, rather because, in accordance with the aims of the
Directive, material that was originally waste needed to continue to be treated as such until
acceptable recovery or disposal had been achieved. The ECJ had consistently declined to
develop workable criteria to determine that question. Instead, it continued to insist that
the “discarding” test remained applicable, even where the ‘holder’ was an end-user whose
only subjective intention was to use, not to get rid of the materials. Whilst paying ‘lipservice’ to the “discarding” test, the ECJ in practice subordinated the subjective question
implicit in that definition to a series of objective indicators derived from the policy of the
Directive. The Agency’s test for “end of waste” was too narrow. It should be enough that
the holder had converted the waste material into a distinct, marketable product that could
be used in exactly the same way as an ordinary fuel, and with no worse environmental
effects.
Whilst thinking it wrong for the Court of Appeal to go further and provide a definitive
test, Carnwath LJ urged the Agency and DEFRA to cooperate to produce practical
guidance on the issue.
17
Waste in another context – landfill tax
The case of Waste Recycling Group Ltd v Revenue & Customs Commissioners
[2007] EWHC 3014 (Ch) considered the landfill tax and whether it applies to disposal of
inert waste. The Finance Act 1996 provides by s.39 that landfill tax is charged on a
‘taxable disposal’ which is ‘a disposal of material as waste’, ‘made by way of landfill’
‘made on a landfill site’, and ‘made on or after 1 October 1996’. The case turned on
whether inert material used by Waste Recycling Group on its landfill sites for engineering
purposes, such as road making or in order to provide the required daily cover of the site,
was subject to the landfill tax. The Court held that it was not and the VAT and Duties
Tribunal had erred in law in concluding that certain categories of material used at a
landfill site by the operator for engineering purposes or daily cover had been disposed of
as waste within the Finance Act 1996 s.40(2)(a) and were therefore taxable.
Of the four conditions for a disposal to be a taxable disposal under the Finance Act, the
only condition in issue was the fist issue – whether the inert material had been disposed
of at the landfill sites as waste.
Waste Recycling Group operated landfill sites and transfer stations which accepted waste
from local authorities and others in exchange for a charge and civic amenity sites, run
pursuant to agreements between the company and the relevant local authority which paid
the company for its services. At these sites waste was accepted from members of the
public who were not required to make any payment. The VAT Tribunal had accepted that
tax was not payable where the Company purchased inert material for engineering or daily
cover purposes. However the Tribunal held that the relevant intention was that of the
person discarding the material and not of the Company. The economic circumstances of
the Company’s acquisition of the waste were irrelevant by virtue of s.64(2) of the Act
and the material remained waste even though it had been separated out from other waste
in order to be used for engineering works or daily cover, and the assumption by the
Company of title to the waste was irrelevant. Accordingly there had been "a disposal of
material as waste" within s.40(2)(a) The Company submitted that the disposer of the
material whose intention was relevant was the company itself, and that even if the
governing intention was not that of the Company the intention of the disposer was not to
discard the material.
The Court held that:
(1) The fact that property in the material had passed to the Company was not conclusive
on the issue of who was making the disposal. Making a disposal at someone's request or
pursuant to a contract with someone under s.64 of the 1996 Act was not limited to cases
where legal title had not passed as part of the process of disposing of the material on
behalf of that other person. The circumstances in and stage at which ownership passed
might have some bearing on the question whether the disposer at the site was acting on
behalf of another person and the tribunal was wrong to say that such matters were always
irrelevant.
(2) Material which had been recycled would not be disposed of "as waste". Recycling
consisted of the production by whatever means of useful material from waste material.
18
There was no justification for denying the description "recycled" to useful material
produced by means of processes such as separating out or sorting, nor for requiring the
material to have been sold to the landfill site operator. The tribunal should have asked
itself whether in relation to each of the various categories of factual circumstances under
consideration any process had taken place, including sorting or separating out, to produce
useful material from waste at any time up to the disposal of the material at the landfill
site. However, the mere fact that the material was used at the site did not mean that it was
recycled. It was possible that material could be re-used at the landfill site yet still be
disposed of there "as waste".
(3) In order to ascertain who was the relevant disposer, it was necessary to have regard to
the whole process culminating in the deposit at site and not just the moment of deposit.
Unlawful waste deposits
The Administrative Court has provided a significant interpretation of the provisions of
section 59 of the Environmental Protection Act 1990. The case confirms that a notice
under that section may be used to require the treatment of unlawfully deposited controlled
waste, without removing it. In Neal Soil Suppliers Ltd v Environment Agency [2007]
EWHC 2592 (Admin), the claimant had removed soil contaminated with Japanese
Knotweed, which was controlled waste, with a view to treating it under licence on its own
land and then recycling it. Having deposited the soil, the claimant then failed to obtain a
waste management licence for the treatment. The Environment Agency prosecuted both
the claimant and the developer from where the soil came under section 33 of the 1990
Act, with both parties convicted and fined. The Agency then served a notice under
section 59 requiring the soil to be removed within 28 days, but without specifying where
this should be to. Section 59(1) provides:
“(1) If any controlled waste is deposited in or on any land in the area of a
waste regulation authority or waste collection authority in contravention of
section 33(1) above, the authority may, by notice served on him, require the
occupier to do either or both of the following, that is—
(a) to remove the waste from the land within a specified period not less than a
period of twenty-one days beginning with the service of the notice;
(b) to take within such a period specified steps with a view to eliminating or
reducing the consequences of the deposit of the waste.”
The code of practice for treatment of such soil when it was found on a site set out three
options, two of which involved leaving it in situ and treating with appropriate pesticides.
The third option was to remove it to a licensed facility which, in the case of Japanese
knotweed, did not exist, or to remove to a landfill site. The claimant appealed against
removal to the Magistrates’ Court, proposing that the notice should be modified so as to
require treatment in situ, with removal if that proved ineffective. The appeal was
dismissed and the claimant appealed to the Crown Court, which noted that the treatment
proposals were similar to those that could have been used at the site from which it was
removed and were no more damaging than if the soil had been left there. Nevertheless the
19
Crown Court refused to modify the section 59 notice, finding that there were policy
reasons for It stated a case to the High Court asking whether it had been correct to base
its decision on the view that, in the light of the waste management legislation and its
purpose, the steps proposed to be taken by the claimant with a view to eliminating or
reducing the consequences of the deposit of the waste under section 59 of the Act would
be contrary to the purpose of the legislation and/or would involve the commission of an
offence under section 33(1)(b) of the 1990 Act, or both. The Crown Court was concerned
that it would undermine the purposes of the Waste Framework Directive (75/442/EEC)
and the 1990 Act of it was to allow an unlicensed person to treat wrongfully deposited
waste on its land, and would permit the commission of a further offence under section 33.
Keene LJ allowed the appeal, finding that the Crown Court appeared to have said that it
could not modify the notice so as to permit a criminal offence to be carried out. There
was an obvious legal flaw in that section 59 not only empowered the service of a notice to
require both removal of the waste and specified steps to eliminate or reduce the
consequences of the deposit, but it could also require either of those two things; merely
removal of the waste, or merely the taking of the steps under section 59(1)(b). In other
words, a section 59 notice may perfectly lawfully allow the waste to remain deposited on
the land, albeit that the deposit breached section 33, and the notice may simply require
some steps short of removal to be taken. It was self evident that this course of action
would normally involve allowing the occupier to “keep” the waste on his land although
that in itself would otherwise be an offence under section 33(1)(b). Likewise, the section
59 notice could require the occupier to “treat” the waste in some way. Consequently,
section 33(1) had to be read subject to section 59(1). Action in compliance with the
section 59 notice would not amount to a criminal offence under section 33(1). That was
entirely accepted by the Agency and to the judgment of the Crown Court had been based
upon the contrary view, it had been erroneous. Although that in itself was enough to
warrant remittance of the instant case to the Crown Court for reconsideration,
observations would be made as to the second element in the reasoning. When faced with
an appeal against a section 59 notice, the purpose of the Waste Framework Directive was
protection of human health and the environment, and did not seem to point strongly in
favour of removal or against treatment. The Crown Court approach may have been
influenced by a desire to prevent evasion of the waste management licence system and to
prevent commercial gain from this. These were essentially considerations of punishment
of the offender and deterrence of others, which were achieved through the section 33
procedures, and inappropriate considerations in section 59 proceedings. The purpose of
section 59 was remedial, with the task to decide the most appropriate remedial steps in
the context of protecting human health and protecting the environment, rather than to
make good any deficiencies in the penalties imposed in criminal proceedings. In any such
appeal an offence would have been committed, and if there was to be the sort of approach
adopted by the Crown Court in the present case, then in almost every case the court
would prefer, on no other good or pragmatic grounds, the course of removal rather than
treatment. No such presumption was implied in the provisions of section 59.
20
Piggy-back landfills
In R (on the application of (Anti-Waste Ltd) v Environment Agency [2007] EWHC
717 (Admin; [2007] Env LR 28, the High Court held that a permit allowing for the
deposit of waste in a landfill site that overlapped a previous existing closed cell of waste,
a procedure known as "piggybacking", could be lawfully granted only if it could be
demonstrated that there was no serious risk of pollution either currently or in the future
from either the new or the old cell of waste. The claimant company (AWL) applied to
quash the refusal by the Agency of permits to allow AWL to deposit waste in two landfill
sites and sought declarations to establish the true construction of material provisions in
the relevant landfill regulations. AWL had sought to landfill at two sites so that the waste
it deposited would overlap that in a previous existing closed cell of waste, a procedure
known as "piggybacking". The Agency refused permission on the basis that piggybacking
was not permitted by Directive 1999/31, which was implemented by the Landfill
(England and Wales) Regulations 2002. The lawfulness of piggybacking fell to be
determined and issues arose as to whether (i) a landfill permit could lawfully be granted
for the separate operation of a landfill that partially overlaid a closed cell containing
previously deposited waste; and (ii) if a permit had to relate to the whole site, namely the
proposed landfill together with the closed cell, the agency was required to refuse to grant
a permit where the existing deposits in the closed cell were responsible for harmful
discharges to groundwater and where the landfills as a whole could not be made to
comply with the technical requirements of the relevant landfill directives. Collins J held
that : (1) In principle a “site” did not mean an area of ground – there could be an
underground landfill site, as the Court of Appeal had found in Blackland Park
Exploration Ltd v. Environment Agency [2003] EWCA Civ 1795. Thus it was
incorrect as in RGN 6 to say that as a matter of law it was necessary to delimit the landfill
by a line on a plan. Further a piggy-back landfill could be a stationary technical unit for
PPC purposes. (2) A permit could not be granted for piggybacking if there was any
serious risk that, as a result of the new deposits, pollution might occur from the old cell,
for example because of compression. Equally, there had to be no interference with the
ability to control any pollution from the old cell such that there was a risk of serious
pollution of the environment. Thus, if engineered barriers might not survive for a
sufficiently long time to cater for any after care requirements, a refusal would be
justified. In principle, however, there was no reason why a new deposit in a defined area
that excluded an old cell should not qualify. Piggybacking as claimed by AWL was
therefore lawful only if it could be demonstrated that there was no serious risk of
pollution either currently or in the future, and a landfill permit did not have to refer to the
whole site including the old cell. (3) In the light of that decision, the groundwater issue
did not arise for determination but had an installation to have been regarded as including
an existing closed cell, the Groundwater Regulations 1998 would prevent the grant of an
authorisation if there were any relevant discharges, whether or not the new deposits
themselves caused any such discharges.
The matter then went to the Court of Appeal in R (on the application of Anti-Waste
Limited) v Environment Agency & Secretary of State for the Environment Food &
Rural Affairs [2007] EWCA Civ 1377 (Pill LJ, Sedley LJ, Rimer LJ). The Environment
21
Agency appealed against the judgment of Collins J. As well as the points of law, several
interesting practical issues emerge from the judgment. Collins J had granted two
declarations that:
1) As a matter of law, a landfill permit may be granted pursuant to the Landfill
Regulations for the operation of a separate landfill which partially overlies a
closed cell containing previously deposited waste
2) Where an installation or part of an installation as a landfill includes a closed cell
which is discharging and which will continue to discharge a List I substance into
groundwater or a List II substance such as to cause pollution of groundwater, a
landfill permit cannot as a matter of law be granted for that landfill as the landfill
permit would thereby permit those discharges to be made from that landfill
contrary to the Groundwater Regulations.
The Environment Agency appealed against the first declaration and Anti Waste Ltd (a
waste management company) appealed against the second declaration. On the issue of
whether a landfill permit could lawfully be granted for the operation of a piggy backing
landfill, the Court of Appeal agreed with Collins J that a permit could be granted as a
matter of law. The issue turned on interpretation of the PPC Regulations which require
permits for an ‘installation’ which includes landfills over a certain size and, in particular,
the interpretation of the definition of ‘installation’ as ‘a stationary technical unit where
one or more activities listed in Annex 1are carried out, and any other directly associated
activities which have a technical connection with the activities carried out on that site
which could have an effect on emissions and pollution.”
The Agency sought to argue that ‘technical unit’ had to be defined as including both the
piggybacked cell and the old landfill cell. Collins J had held that a new deposit in a
defined area which excluded an old cell was capable of qualifying as a ‘stationary
technical unit’. The Agency’s concern seems to have been driven by practical difficulties
inherent in piggy backing including identifying the culprits of pollution occurs. However
Collins J took the view that such technical difficulties do not establish that a permit
cannot be granted as a matter of law – ie he separated the practical difficulties from the
legal question. The Court of Appeal dealt with the point fairly shortly and agreed with
Collins J
The other issue concerned the Groundwater Regulations and turned on the construction of
the word ‘permit’ in Regulation 4 of the Groundwater Regulations 1998 in that
Regulation 4(1) of the Regulations provides that ‘an authorization shall not be granted if
it would permit the direct discharge of any substance in List 1”. Pill LJ questioned the
need to decide the issue given the Court’s decision that an installation did not include a
closed cell. However the parties requested that the Court rule on the matter which he said
he did with ‘some hesitation’. He took the view that a PPC permit which did not require
the ending and prevention of an old discharge does not ‘permit’ that discharge. The
Groundwater Regulations contemplate a discharge direct or indirect which results from
the activity to be authorized and its consequences but not a discharge extraneous in the
sense that it is unrelated to the new activity.
22
The other practical issue relates to the Court’s hostility to the use of declarations. The
case began life in the Admin Court as an application to quash the Environment Agency’s
refusal to grant permits to deposit into two landfill sites. By the time that the case came
on before Collins J, as the Court said, the company ‘had recognized that its proper course
in relation to the refusal of permits was to appeal to the Secretary of State pursuant to Part
IV of the Pollution Control Regulations’. This would enable factual and technical
matters to be dealt with before a specialist tribunal. The company pursued the claim for
declarations so that the statutory appeals could be heard in light of them. It appears, from
Sedley LJ’s judgment that the content of the declarations that were made following trial
were agreed between Counsel in light of the judgment by Collins J. Sedley LJ said as
follows:
“In my view neither the declarations which were made nor any of the expanded versions
put, at our invitation, before this Court, is a proper use of the court’s declaratory
function. The pursuit of them in advance of the statutory appeal to the Secretary of State
is an inappropriate endeavour to anticipate part of that appeal. To do so without the
technical facts is seek declarations of Delphic generality; to tie a declaration to
ascertained facts is an impossibility if the Court is not to take on the role of the Secretary
of State and to tie it to assumed or hypothetical facts is a waste of time’
Sedley LJ expressed disquiet at the way the parties had fought over competing versions
of declarations which he said added nothing of value to the relevant regulation. He said
that, in light of the Agency’s view that for a variety of technical reasons piggybacking
was unlikely in practice to be accepted that ‘why in this situation the declaration has been
fought over at all is incomprehensible’ and that he would quash both declarations. In
contrast the value of Collins J’s judgment was that it provides a reasoned determination
with which he agreed.
Groundwater in the ECJ
In Case C-248/05 Commission v Ireland the ECJ held that Ireland has failed to fulfil its
obligations under the Groundwater Directive (80/68/EEC). The Commission submitted
that Ireland had failed to take all necessary measures to comply with the Directive in
relation to a specific municipal landfill site, and with regard to indirect discharges to
groundwater from septic tanks generally. The landfill used the method of diluting and
dispersing the leachate, rather than sealing the base of the pit. Whilst Ireland accepted
that there had been discharges of List I substances from the landfill, the relevant
groundwater was submitted to be highly contaminated from former mine-workings and to
be unsuitable domestic or agricultural use. The ECJ found that Ireland had recognised
that the groundwater into which there were indirect discharges of substances in List I
could flow into the River Avoca, where the presence of certain of those substances might
cause discolouration of the water. As that river did not have its source in the groundwater
under the landfill site, and belonged to an aquatic system which was harmed by those
discharges, the provisions of Article 4(2) relating to ‘groundwater permanently unsuitable
for other uses had not been satisfied because the discharges were not confined to
groundwater. As sealing could have been used instead of dilution and dispersal, and thus
23
making it possible for substances in List I to reach an aquatic system separate from the
groundwater under that landfill site, Ireland had not complied with the obligation to take
all technical precautions to ensure that substances could not reach other aquatic systems
or harm other ecosystems, imposed by the second subparagraph of Article 4(2). In so far
as the introduction into groundwater of substances in List II was inherent in the technical
choice made by Ireland, that choice did not comply with the obligation under Article 3(b)
of the Directive, to limit the introduction of those substances into the water concerned in
order to avoid its pollution, because not all the technical precautions that would enable
that objective to be attained had been taken. The Court also found that the prior
investigations preceding the grant of a waste licence for the landfill had not met the
requirements of the Directive. It was clear that the environmental impact of the discharge
on groundwater and surface water was not fully understood before that licence was
granted, in contravention of the requirements laid down by Article 7.
For all substances in List II, including those from septic tanks, the Member States had, as
a rule, to establish prior investigation and authorisation procedures for all disposal or
tipping for the purpose of disposal of those substances which might lead to indirect
discharge. Ireland had recognised the need to implement the Directive in accordance with
that interpretation of Article 5(1). From examination of the evidence, it appeared that
substances in List II had been indirectly discharged by hotel premises without complying
with the conditions laid down in Articles 5, 7, 8, 10, 12 and 13 of the Directive and that it
was possible that such substances had been discharged from the septic tanks fitted to
certain dwellings, in breach of the conditions laid down in Article 5(1) of the Directive.
Nonetheless, such defective application, geographically confined as it was, could not
provide grounds for inferring that there existed throughout the Irish countryside an
administrative practice relating to indirect discharges into groundwater of effluents from
septic tanks that possessed the characteristics required by the Court’s case-law and
violating the Directive’s provisions. As the Commission had failed to furnish the requisite
proof in this regard, the claim relating indirect discharges form septic tanks would be
rejected.
Incinerators
In R (West London Waste Authority) v Mayor of London [2007] EWHC 757
(Admin); [2007] Env LR 584 the High Court held that The Mayor of London had
exceeded his powers under the Greater London Authority Act 1999 s.356 when he issued
directions to a waste disposal authority requiring that new incinerator contracts should
include state of the art emissions-limiting equipment, combined heat and power
generation, and pre-treatment of waste to remove recyclable elements before incineration.
The claimant waste disposal authority (WLWA) applied for judicial review of directions
to it by the respondent mayor of London (MoL) in respect of the procurement of
incineration facilities for municipal waste. WLWA had wished to reduce the proportion
of biodegradable untreated waste that it sent to landfill, as sending it was the least
desirable option in the waste disposal hierarchy and also resulted in financial penalties if
landfill quotas were exceeded. Therefore, WLWA proposed to put out to tender a contract
24
for diversion of waste away from landfill. A waste contractor (Grundon) was building an
incinerator at Colnbrook near Slough that WLWA considered would be a suitable
solution, but the MoL did not believe that using it would be in accordance with the MoL's
municipal waste management strategy, in that it did not incorporate CHP, have state of
the art emissions limiting equipment or involve pre-treatment. There was also a concern
that the Grundon scheme would deter other solutions coming forward.
Under the Greater London Authority Act 1999 s.356, for the purposes of implementing
the MoL's waste strategy (“Rethinking Rubbish in London” September 2003), he had
powers to issue directions to waste disposal authorities requiring them to exercise their
functions in the manner set out in those directions. The MoL issued two such directions
to WLWA, paragraph 3 of which required that new incinerator contracts should include
"state of the art" emissions-limiting equipment, combined heat and power generation, and
pre-treatment of waste to remove recyclable elements before incineration. The MoL
submitted that he had power to give a direction in respect of a discrete area of the strategy
by virtue of the words "may be exercised either generally or specially" in s.356(4) of the
1999 Act. WLWA submitted that particular principles in the MoL's strategy could not be
elevated above the others and made into requirements. WLWA further contended that the
pre-treatment of waste before incineration, and the use of incinerators that minimised
emissions and generated heat and power were aspirations but that they could not justify
requiring only an incinerator that did those things while ignoring one that did not, as that
could result in the continued use of landfill, which would ignore the waste hierarchy
principle.
Goldring J held that: (1) Under s.356 of the 1999 Act, the MoL could only give a
direction if he considered it necessary for the purposes of the implementation of his waste
management strategy when read as a whole. That power was narrower than the wholly
unfettered power that had been given to the Secretary of State under the Town and
Country Planning Act 1990 s.35(2), and the MoL did not have the power to exclude an
option that might accord with his strategy taken as a whole, R v Secretary of State for
the Environment, Transport and the Regions Ex p West Sussex CC (1999) 77 P &
CR 263 distinguished. (2) The requirements in the MoL's directions for new incinerators
to have "state of the art" emissions-limiting equipment, and combined heat and power,
were aspirational and ignored issues of practicability and cost; it would be difficult to
find a tenderer willing to commit to providing such an incinerator. Those requirements
excluded options that would accord with the MoL's strategy when read as a whole. The
likely consequence of such requirements would be to shut out any option but the
continuation of the use of landfill, a result which ignored the waste hierarchy principle
and was not the best practical environmental option. Although the position with respect to
pre-treatment of waste was less clear cut on the facts, that requirement also seemed to
shut out a solution that might be the best practicable environmental solution and so had
the same defects as the other two requirements. Accordingly the WLWA’s application
was granted.
In another case the Administrative Court found a direction by the Mayor of London as to
the need for compensatory provision of waste re-use and recycling facilities to be
25
unlawful. In R (on the application of London Borough of Enfield) v Mayor of
London [2007] EWHC 1795 (Admin) the Borough Council operated two waste re-use
and recycling sites as waste disposal authority, and subsequently sold one site for
development as housing. The remaining site had licensed capacity which could
accommodate that previously required at the closed site, with potential for further
increase if required. The Council considered that, combined with increased door-to-door
collections, the spare capacity amounted to appropriate compensatory provision as set out
in the Municipal Waste Management Strategy for London. The Mayor of London issued
a direction under section 356(1) of the Greater London Authority Act 1999 which
required the Council to make appropriate compensatory provision for the closure of the
site by providing a new site within the Borough. There had been detailed correspondence
on drafts before the final direction was issued. A planning inquiry considered the housing
development application shortly after the issue of that final direction, and the only live
issue considered was that of waste management. The main consideration was whether the
loss of the closed site would be consistent with the aims of the London Plan, which was
consistent with and summarised the relevant parts of the Municipal Waste Management
Strategy, as well as advice set out in PPS10. The Inspector considered that the insistence
of the provision of a replacement site would be a slavish adherence to a concept that had
not been explicitly sought in the relevant development plan and that ignored the progress
that the Council had made in waste management. He concluded that appropriate
compensatory provision had been made in accordance with the waste policies in the
London Plan. The Secretary of State agreed with these conclusions and the Council then
sought judicial review. The three main grounds were: (1) that the Mayor had not fulfilled
a statutory obligation to consult imposed by section 356(4) of the 1999 Act; (2) the view
that the Mayor had formed about the requirement for the provision of a new site to
replace the closed site was either unlawful or irrational, or both; and (3) in the light of the
recommendation of the Inspector and the decision of the Secretary of State, the Mayor’s
decision could not stand. The Administrative Court allowed the application. Mitting J
found that: (1) the consultation process had achieved almost all of that which a
consultation process could reasonably have been expected to achieve and had not been
inadequate; (2) the decision as to what was necessary to implement the Municipal Waste
Management Strategy was the Mayor’s and that decision had been one which he had been
entitled to make; but (3) the Inspector’s determination that appropriate compensatory
provision had been afforded by various policies adopted by and facilities operated by the
Council, once made, was the only tenable view of the issue. The basis for the Mayor’s
direction had thereby been undermined and to sustain it in the light of that would be
irrational. An appeal by the Mayor was dismissed in [2008] EWCA Civ 202. The Mayor
sought to argue that, having his own discrete waste management powers he was not
bound by the Secretary of State’s decision. However, the Mayor had, and took the
opportunity to deploy before the planning inspector his case that permission for housing
should be refused. Further, the Mayor could have, but did not, challenge the decision
under section 288. The Mayor could have rejected the inspector’s view, but only on a
rational basis (see Bradley v Secretary of State for Works and Pensions [2008] EWCA
Civ 36. The original decision to give a direction could be seen as tenable when made, but
to persist in it following a contrary decision with independent adjudicative scrutiny in the
statutory planning process was irrational.
26
Transfrontier shipment
The ECJ has clarified an aspect of Regulation 259/93/EEC on transfrontier shipments of
waste in the case of Omni Metal Service (Case C-259/05). The case arose out of
criminal proceedings against OMS for exporting scrap electrical cable from Spain to
China, via the Netherlands, without giving the Dutch authorities prior notification of that
shipment. The cable was intended for processing, with a view to re-use. Category GC 020
in Annex II (the Green list of wastes) comprised “Electronic scrap (e.g. printed circuit
boards, electronic components, wire, etc.) and reclaimed electronic components suitable
for base and precious metal recovery”. The Dutch authorities considered that the
materials fell outside that category because they did not consist of household flex or wire
but rather of large-diameter underground cable for the transport of electricity, and that,
since the unseparated combination of copper and PVC was not, as such, mentioned on
that list or on the lists in Annexes III or IV to the Regulation and the shipment was to be
to a non-OECD State, the Dutch authorities should have been notified, as the authorities
of transit. OMS argued that GC 020 did include the materials in questions, because the
composition of the cables was the only decisive factor for the purposes of such a
classification, not their origin or their diameter. the component parts of the waste
materials, copper and PVC, were also included as categories within the Green List, and
where there was a combination of different green list wastes, the practice followed in
Spain, the country of dispatch, was to regard those wastes as coming under that list and,
as a consequence, to follow the green list procedure. The policy in China was similar.
The Dutch Court stayed proceedings and referred the following questions to the ECJ for a
preliminary ruling under Article 234 EC:
1. “Can cable scrap such as that in issue in the present case (in part
with a diameter of 15 cm) be classified as “electronic scrap (e.g. …
wire,(etc.)” within the terms of heading GC 020 of the green list?
2. (If the Court of Justice should answer Question 1 in the negative, can
or must a combination of green list materials, which is not as such
mentioned in the green list, be regarded as a green list material and
may that combination of materials be transported for purposes of
recovery without the notification procedure being applicable?
3. Is it necessary in this connection that the waste material be offered or
transported separately?”
GC 020 included only wire from electronic equipment and whether the materials in
question came within that category was a matter for the domestic court. The second and
third questions were to be understood as asking, in essence, whether Regulation
259/93/EEC should be interpreted as meaning that the rules on shipment in relation to
green list waste applied to a composite-type waste which, although not referred to in that
list, was a combination of two materials both of which appeared on it. As the Court has
previously held, it was apparent that the system set up for the supervision and control of
shipments of waste between Member States introduced by the Regulation reflected the
need to preserve, protect and improve the quality of the environment and was designed to
enable the competent authorities to take all necessary measures for the protection of
27
human health and the environment. It was clear that the provisions were also intended to
protect the environment in third countries to which waste was exported from the
Community. Wastes were generally excluded from the control procedures on the basis
that they should not normally present a risk to the environment if properly recovered in
the country of destination. It was clear that, where a type of waste was included on that
list and was consequently excluded from the system of supervision and control, that was
the result of a prior assessment which concluded that there were no such risks. That more
flexible system could not in principle be extended to wastes which did not appear on that
list.
In particular, where waste was composed of two materials which, when considered
separately, could constitute types of waste which were included on the Green List of
wastes, it did not automatically follow that such composite waste came under that list.
The conditions under which waste may be processed and the environmental risks
associated with the handling of such waste were not necessarily the same and could vary
according to whether the waste concerned consisted of a composite whole made up of a
number of materials or whether each one of those materials constituted a distinct type of
waste. The Court had held that a mixture of Green List wastes could belong to category
“AD 160 municipal/household waste” on the Amber and could only come under the
Green List if such waste had been collected separately or sorted correctly (Beside BV
Case C-192/96). A fortiori, a single type of waste that was the result of a durable
combination, and not a simple incidental mixing, of two main materials both of which
were included on the Green List could not come under that list, unless it was expressly
mentioned there.
Transfontier contracts
The High Court has given judgment in a case concerning the entitlement to terminate a
contract for transfrontier shipments of waste: Catalyst Recycling Ltd v Nickelhutte
AUE GMBH [2007] EWHC 866 (QB). The case concerned a defendant German
company which specialised in the transport and processing of waste metals and had an
agency agreement with the claimant English company which granted the claimant
exclusive rights to source and ship waste metal from within the UK and Eire to the
defendant. Article 27 of the Transfrontier Shipments of Waste Regulation (259/93/EEC)
had as an essential requirement that an adequate financial guarantee or equivalent
insurance was in place for waste exporters so that the return of waste could be secured if
necessary. The German competent authority for waste shipments issued an administrative
decision which declared that it did not consider that any valid, or any sufficient, financial
guarantee was in place, so that shipments by the claimant would be unlawful. It appeared
that this concern resulted from a change of name of the claimant company. Despite this,
shipments took place from the UK and from Eire, which were quarantined upon arrival at
the defendant’s premises in Germany. The claimant successfully appealed the German
competent authority’s decision, which accepted that a valid financial guarantee had been
in place at all times. The authority nevertheless maintained that the three shipments had
been unlawful as a matter of German Administrative Law on the basis that such
28
shipments had been unlawful until the authority had been satisfied as to the existence of
the guarantee. The defendant sought to terminate the agency agreement on the grounds
that unlawful shipments had been made, and the claimant brought proceedings claiming
wrongful repudiation of contract on the basis that the shipments had, in fact, been lawful.
HH Judge SP Grenfell gave judgment for the claimant, finding that the shipments had
been lawful, so that the defendant's termination of the agency agreement had constituted a
repudiatory breach and the claimant was entitled to damages. His Honour found, having
heard expert evidence from both parties, that the relevant provisions of the domestic
legislation placed the primary responsibility for determining the suitability of the
financial guarantee on the exporting competent authority and that the authority of
destination was only obliged to investigate this in exceptional cases. He also found that
the competent authority had not had sufficient reason to believe that the financial
guarantee was invalid, so that there had been no breach of the national Waste law and that
it was unlikely that a prosecution based on an alleged infringement of German law would
have succeeded. He further found that there was nothing in German law which suggested
that a mere concern as to the validity of the financial guarantee had been sufficient to
render unlawful that which was plainly lawful under Article 27 of Regulation
259/93/EEC. The general consent provided under Article 9 of that Regulation rendered
the intervention of the importing competent authority unnecessary unless the national
legislation gave it authority to do so, which had been found not to be the case. His
Honour then gave judgment as to the losses recoverable by the claimant as a result of the
repudiatory breach of the agency agreement by the defendant.
Escaped sewage as “waste”
The ECJ has given judgment in the case of R (Thames Water Utilities) v South East
London Division, Bromley Magistrates’ Court (Case C-252/05). The national court
made a reference for a preliminary ruling under Article 234 on the question of whether
sewage escaping from the sewage network amounts to “directive waste” for the purposes
of the Waste Framework Directive (75/442/EEC). The water company had been
prosecuted by the Environment Agency, in relation to 15 offences; 11 contrary to section
33 of the Environmental Protection Act 1990 and four contrary to section 85(3) of the
Water Resources Act 1991. The preliminary issue arose as to whether, even if the
Environment Agency proved the case alleged, the prosecution would still fail in relation
to the 11 charges because, as a matter of law, sewage escaping from pipes maintained by
a statutory undertaker was not controlled waste for the purposes of section 33 of the
Environmental Protection Act. In order to resolve that question, it was necessary for an
authoritative decision to be made by the European Court of Justice. Accordingly, the
following two questions were referred:
1.
Whether sewage which escapes from a sewage network maintained by a statutory
sewerage undertaker pursuant to the Urban Waste Water Treatment Directive
91/271/EEC and/or the Water Industry Act 1991, amounts to 'directive waste,' for
the purposes of the Directive 75/442/EEC (as amended).
29
2.
If the answer to (1) is in the affirmative, whether the aforesaid sewage:
(a)
is excluded from the scope of 'directive waste' under the WFD by virtue of
article 2(1)(b)(iv)of the WFD, in particular, by virtue of the UWWTD
and/or the WIA 1991; or
(b)
comes within article 2(2) of the WFD and is excluded from the scope of
'directive waste' under the WFD, in particular, by virtue of the UWWTD.
The ECJ held that the Waste Framework Directive clearly included waste waters within
the definition of “waste” in Annex I and so the question was that of whether these were
‘discarded’. The verb “discard” had to be read in the light not only of the aims of the
Waste Framework Directive of protecting human health and the environment but also
Article 174(2) EC which provided that ‘Community policy on the environment shall aim
at a high level of protection and based on the precautionary and preventative principles.
The fact that waste water escaped from a sewerage network did not affect its character as
“waste” within the meaning of the Waste Framework Directive; the escape of waste water
from a sewerage network constituted an event by which the sewerage undertaker, the
holder of that waste water, ‘discards’ it. The fact that the waste water was spilled
accidentally did not alter the outcome (Van de Walle & Others (Case C-1/03) was
referred to). The Court had held that the Waste Framework Directive would be made
redundant in part if hydrocarbons which caused contamination were not considered waste
on the sole ground that they were spilled by accident, and the same reasoning had to be
applied to waste water which leaked accidentally. The answer to Question 1 had therefore
to be that waste water which escaped from a sewerage network maintained by a statutory
sewerage undertaker pursuant to Directive 91/271/EEC and the legislation enacted to
transpose that directive constituted “waste” within the meaning of the Waste Framework
Directive.
Under Article 2(1)(b)(iv) of the Waste Framework Directive waste waters, with the
exception of waste in liquid form, were excluded from the scope of that directive,
provided that those waste waters were already covered by ‘other legislation’, which the
court had found could include other domestic legislation. To be regarded as ‘other
legislation’ within the meaning of Article 2(1)(b), the rules in question had to not merely
relate to a particular substance, but to contain precise provisions organising its
management as waste within the meaning of Article 1(d) of the directive and ensuring a
level of protection which was at least equivalent to that resulting from the Waste
Framework Directive. Although it regulated the collection, treatment and discharge of
waste water, Directive 91/271/EEC did not ensure such a level of protection. It did no
more than lay down, as regarded leakage of waste water, a duty to prevent the risk of
such leaks when designing, constructing and maintaining collecting systems and did not
lay down any objective in relation to the disposal of waste or decontamination of
contaminated soil. It could not therefore be regarded as relating to the management of
waste water which escaped from sewerage networks and ensuring a level of protection
which was at least equivalent to that resulting from the Waste Framework Directive. It
had not been possible to determine whether the national legislation contained precise
30
provisions organising the management of the waste and ensuring such a level of
protection, and that was a matter for the national courts.
Directive 91/271/EEC did not contain any provision which concerned, as such, waste
water escaping from a sewerage network. It could not therefore be regarded as containing
specific rules for particular instances or supplementing those of the Waste Framework
Directive on the management of waste water which escaped from a sewerage network.
PPC Permits and sewerage undertakers
The case of United Utilities Water plc v Environment Agency [2007] UKHL 41;
[2007] 1 WLR 2707 marks the final stage in the long running battle between United
Utilities and the Agency over the need for PPC permits for some of its sewage treatment
plants. It is also the first time the House of Lords has considered the Pollution Prevention
and Control Regulations. In 2004, UU started proceedings against the Agency seeking
declaratory relief to the effect that some of its sewage treatment plants did not require a
PPC permit.
The process carried out by UU in relation to sewage sludge were::
a) thickening
b) primary and secondary digestion (by slow heating followed by cooling) to reduce
the organic and pathological content; and
c) dewatering (by centrifuge or other mechanical means) to reduce the sludge to 'cake'
with about 30% solid matter
Processes a) and c) amount to 'physico-chemical treatment' for the purposes of Section
5.3 of Schedule 1 Part 1 of the PPC Regulations and b) amounts to biological treatment
for those purposes. One or other of these processes were carried out at the three sewage
treatment plants at issue in these proceedings. The sludge was then transferred by road
and pipeline to a large processing plant called Shell Green, “the destination of a huge
volume of partially-treated sludge”. Following further treatment at the plant to reduce the
water content, a third of the sludge was incinerated at the plant or sent to landfill and two
thirds was recovered, mainly by being spread on agricultural land as fertiliser. The point
of interpretation on the Regulations was whether the intermediate activities carried on at
the three sludge treatment plants required a PPC permit or whether only the Shell Green
processing plant required a PPC permit.
Regulation 9 of the PPC Regulations provides that no person may operate an installation
without a permit. An installation is defined as a stationary technical unit where one or
more of the activities listed in Schedule 1 are carried out. These activities include 'the
disposal of waste other than by incineration or landfill' (Section 5.3). The waste disposal
activities are subdivided so as to include (paraphrasing) the disposal of non hazardous
waste by biological treatment specified in paragraph D8 of Annex IIA of the Waste
Framework Directive, which results in final compounds or mixtures which are discarded,
31
as defined in the Waste Framework Directive) and physico-chemical treatment within
paragraph D9 which results in final compounds or mixtures which are discarded.
As Lord Hoffman said, this wording makes clear that the forms of treatment require a
permit only if they result in end products which are discarded. Identical treatment which
results in end products which are 'recovered' (ie put to some use) do not require a permit.
"The Regulations and Directive upon which they are based make a clear
distinction between disposal or discarding on the one hand and recovery on the
other. But the short point in this appeal is whether the production and discarding
of the end product must take place within the same installation as the biological
or physico-chemical treatment. The appellants say treatment of non-hazardous
waste at an installation which produces an intermediate product which is then
transferred to another plant for final treatment and disposal does not fall within
the definition …I do not agree"
Lord Hoffman went on to say that the purpose of the legislation was among other things
to protect the environment against potential damage from the operations involved in the
disposal of non hazardous waste including chemical or biological treatment. Exclusion of
recovery processes fro the permit regime was no doubt part of a policy of encouraging
recovery. But exclusion of treatment simply on the ground that the final product for
discarding was produced elsewhere could have no rational explanation. He dismissed the
appeal by United Utilities, as did Lords Rodger, Walker, Carswell and Brown.
Lord Walker (with whom the other Law Lords agreed) gave the other reasoned speech.
As he pointed out, the case turned on a single issue of construction. He pointed to the
clear distinction in EC law between disposal or getting rid of material as worthless and
recovery, making use of it (shown better in the French, “élimination” and “valorization”).
It was agreed that a purposive construction was needed to the words “treatment which
results in final compounds or mixtures which are discarded”. In considering the wording
of Annex IIA of the Waste Framework Directive, Lord Walker confessed he found the
relationship between the “intermediate” disposal operations D8 and D9 “baffling”.
However, this was not essential to the main argument. It was agreed that there was no
discrepancy between the UK and EC legislative wording so as to require a Marleasing
style interpretative approach. UU’s essential point was that the word “final” was decisive,
in that a product that was to receive further treatment could not be “final”. The EA
argued that this would have absurd results, in avoiding control if any sludge were
switched from one site to another.
Lord Walker did not regard this as a case in which the language was perfectly clear, and
clarity was not achieved by looking at the French text. Nor was the SITA Ecoservice
case (C-116/01) [2004] QB 262 of any real help as it concerned different facts and
different provisions. Much of the difficulty here arose from the “hidden complexity” of
the definition of “installation”, and the interaction with the fact that some activities (D8
and D9) are defined not only in terms not only of a product, but what then happens to it.
UU’s submission, of focusing simply on what happens on the installation in question, had
32
an attractive simplicity but ultimately would not be in accordance with the clear general
policy of preferring recovery to disposal: the rather “compressed drafting” of section
5.3(c) did not require the coming into existence of the product and its disposal to be
simultaneous.
Lord Walker could understand the grievance of UU in that its Shell Green plant was the
hub of a centralised system for sludge disposal and recovery. If all its output went for
recovery then the upstream treatment plants would not require a PPC permit. In fact twothirds of the output goes for recovery, but there is no proportionate relief or discount on
that account.
Essentially the decision supports the reasoning of the Court of Appeal [2006] Env LR 42
(and before that of Nelson J) that a distinction between intermediate and final operations
was not a principled distinction in the relevant legislative context. The decision of the
Court of Appeal on the other aspect, i.e. that two sets of premises half a mile apart and
connected by a pipeline could not be said to be “on the same site”, was not appealed. It
will be recalled that Laws LJ was highly critical of the mistransposition by the PPC
Regulations of the Directive, by including a requirement of “same site” in the definition
of “installation” which was not in the Directive, and the drafting of the Directive itself by
the imprecision of the concept of “technical connection”, where guilt or innocence might
rest on a court’s interpretation of that term.
Spilled materials
In another case, AG Kokott has had another try at dealing with some of the problematic
issues and forensic conundrums on waste in Case C-188/07 Commune de Mesquer v.
Total France SA (13 March 2008). This case concerned the “Erika” oil spill off
Brittany in 1999., and raised the question of whether the heavy fuel oil which ended up
on the beaches was waste. The AG held that heavy fuel oil as the product of a refining
process, which meets the user’s specifications and is intended to be used as fuel, is not
waste. Spillage of the oil, where it became mixed with water and sediment, did however
constitute its discarding as waste. That then raised the issue of whether the producer of
the heavy fuel oil may be ordered to bear the cost of disposing of the waste, pursuant to
Article 15 of the Waste Framework Directive. The AG held that this was possible if they
could be accused of contributing personally to the leak or spill. However, it would also
be compatible with that provision to limit the liability of the producer and/or seller and
carrier in accordance with the 1969 Convention on Civil Liability for Oil Pollution
Damage and the 1971 Convention on the Establishment of a Fund for Compensation for
Oil Pollution Damage, as amended.
Meaning of “sewer”
The Court of Appeal has decided a case which involved the issue of whether a water
culvert from which flooding was causing a nuisance was a ‘sewer’ so that the sewerage
33
undertaker had statutory responsibility for it. In Raglan Housing Association Ltd v
Southampton City Council [2007] EWCA Civ 785, the respondent was a housing
association which owned land abutting the culvert and claimed that the sewerage
undertaker and/or the local authority was responsible for its maintenance. The questions
of whether the culvert was a “sewer” and whether the sewerage undertaker had statutory
responsibility for it were tried as preliminary issues and the County Court found that the
culvert was a surface water sewer, but not a public sewer. The channel, of which the
culvert formed part, had once been a natural stream but, whilst the culvert adjacent to the
Housing Association’s property was open, much of the channel’s length had been
covered over, part of the culvert was piped, and the whole length of the channel was lined
with concrete. The trial judge found that in 1878 the channel carried both natural
groundwater and surface water and that there was still a continuous clear flow of water in
dry weather, but the source of that flow was not known. The channel received a great deal
more surface water than it once had done, brought to it by way of upstream surface water
sewers, and some points upstream from the culvert received overflow of foul sewage. The
judge also found that there was no evidence as to who had undertaken the work to line the
culvert. Parts of the channel downstream from the property had been the subject of works
done by the relevant sewerage undertaker as such. The local authority appealed against
the County Court’s findings on the preliminary issues, arguing that the only relevant
matter was the nature of the flow through the channel, rather than changes made to its
construction; and that a “watercourse” could only become a “sewer” if the contents of the
flow consisted so substantially of lawfully deposited foul sewage that it had become
essentially a foul water sewer. The local authority contended that the change in the nature
of the flow in the culvert had been nothing like substantial enough to turn the channel
from a “watercourse” into a “sewer”.
The Court of Appeal allowed the appeal by a majority and with some differences of view
as to the effect of the decision of the Court of Appeal in ‘British Railways Board v
Tonbridge & Malling D.C.’ Lloyd L.J. found that the judge had erred in holding that it
was for the local authority to prove that the continuous base flow of clear water in dry
weather still included natural ground water. As the channel had clearly been a
watercourse originally, the burden of proof was the other way. He ought not to have taken
into account, to the extent that he ha d, the discharge of foul sewage into the channel. The
fact that the course of the stream now lay over, or through, concrete culverts or pipes was
not a matter which by itself could have any relevance to the decision. Construction works
could be relevant if done under statutory authority, but none were relevant to the culvert.
Change in the route of the channel was also irrelevant, especially since almost all the
significant changes were downstream from the culvert and matters downstream were
inherently of little or no relevance to the status of the culvert. The judge had also erred in
considering the status of the channel as a whole, rather than that of the culvert, albeit in
the context of the rest of the channel so far as relevant. In Lloyd L.J.’s view, what was
relevant was the nature of the flow through the culvert. The stream started as a
watercourse, carrying natural ground water, as well as, inevitably, some surface water. It
still started in the same place and was still partly open there. In those circumstances the
natural assumption should be that it still carried some natural ground water. It also carried
a lot more surface water than it used to, and occasionally carried some foul sewage,
34
though the latter was irrelevant as the terms on which that was discharged were not
known. The only relevant change in relation to the culvert itself was the large increase in
surface water. The fact that there had been substantial works upstream, including some
which appeared to have the status of public sewers, which added to the flow of surface
water was not sufficient to constitute the flow a “sewer” rather than a “watercourse”.
Toulson L.J. dissented, finding that ‘British Railways Board’ did not provide a platform
for the argument that the only circumstances in which a “watercourse” could become a
“sewer” were where it had come to carry substantial quantities of foul sewage. If the
channel immediately upstream of the culvert had been turned into a public sewer to
accommodate principally surface water in much increased quantity, but also some foul
water when the occasion required, the impact of those changes on the culvert was
properly to be taken into account in considering whether it had changed its character.
Whether there had been such a change was ultimately a question of fact and degree. The
fact that the local authority’s own Public Sewer Map showed the relevant section as a
public sewer until the present dispute arose, and the water authority issued a new version
showing it not as a public sewer, was material which the judge was entitled to take into
account as evidence of how the authority itself regarded the relevant section at the time
when the map was originally prepared. The judge was entitled to conclude that at the
relevant time the culvert with which he was concerned had become but a section in a
network of a public sewerage system, predominantly but not exclusively for surface
water, and that its character had therefore changed to the extent that it had become a
sewer. Sir Andrew Morritt (the Chancellor) allowed the appeal, but found that the nature
of the contents or flow of the culvert was the most significant factor in the determination
of the question whether what was once a natural watercourse had become a sewer.
However, the decision of the Court of Appeal in British Railways Board v Tonbridge
& Malling D.C. did not establish that alterations to the bed and banks of the culvert or of
an upstream section of the channel were irrelevant to the question. It was easy to envisage
cases where the additional flow of sewage was inconclusive but works to the relevant bed
and banks would resolve the issue.
REACH
It was only a matter of time before a case on Regulation 1907/2006 on the registration,
evaluation, authorization and restriction of chemicals (REACH) found its way into the
courts. This happened in R (S.P.C.M. SA and others) v. Secretary of State for the
Environment, Food and Rural Affairs [2007] EWHC 2610 (Admin). The three
claimant companies manufactured specialty and industrial chemicals. Each was
concerned about the possible impact of REACH on their business after 1 June 2008,
when it comes into force. There were three areas of concern identified:
(1) Lack of clarity in the definition of “polymers” – polymers are exempted by the
“polymer rule” in Article 2(9) from the provisions relating to registration and
evaluation.
(2) Lack of clarity and lack of scientific basis for Article 6(3) dealing with
requirements for polymers.
35
(3) Articles 5 and 6(1), requiring registration of all substances, either alone on in
preparations, produced or imported in more than 1 tonne per annum were said to
be unlawful as disproportionate and discriminatory.
In JR proceedings, the claimants sought either annulment of the relevant Articles, or
declarations as to their correct interpretation, and a reference to the ECJ on certain points.
An agreed extension of time, allowing the claim to be made some 6 months after the
REACH Regulation took effect, was granted by Jackson J – on the basis that “a
prodigious amount of work” involving technical evidence on polymers and monomers,
was required before the claim could be issued, and that the provisions would not take
effect until August 2008.
Jackson J was of the view that there was a serious issue concerning the validity of Article
6(3) that should be referred. On the wording of Article 6(3), a consensus had emerged in
the hearing that the words “already been registered by an actor up the supply chain”
meant “already registered by someone who is an actor in the present supply chain”. A
declaration to that effect was granted.
On point (3) it was argued that importers of preparations into the Community would have
immense difficulty in complying. One preparation might contain many substances,
which could not readily be ascertained and would have immense costs of compliance,
resulting in some preparations going off the market and some importers going out of
business. It was said the provisions were disproportionate because the same object could
be achieved by allowing registration of preparations and discriminatory because a much
greater burden would fall on Community importers than either manufacturers or
purchasers from manufacturers within the EU.
In considering these submissions, Jackson J looked at the underlying purpose of REACH,
namely to ensure a high level of protection for human health and the environment by
requiring registration and evaluation of all substances manufactured or sold in significant
quantities in the EU. It focuses on substances (of which there are currently around
100,000, of which 30,000 would require registration, on the EU market). The burden of
compliance had been assessed by the Commission, and confirmed by a report by KPMG,
as being substantial, and likely to result in some substances coming off the market and
some businesses closing down. However, these costs were finite. On the other hand a
switch to registering preparations, of which there could be an infinite number, would
result in increased costs and many practical difficulties. It would be fundamentally
different to REACH and would not achieve the objectives of REACH. Nor was there
discrimination. There was a uniformly applied rule which would have a varying but not
discriminatory practical impact: see Case C-344/04 R (International Air Transport
Association) v. Department of Transport [2006] ECR I-403. The claim on this point
was therefore unfounded, not arguable, and should not be referred to the ECJ.
36
EC Law and environmental crime
In R (International Association of Independent Tanker Owners (Intertanko) v
Secretary of State for Transport [2006] EWHC 1577 (Admin) a reference was made to
the ECJ regarding the compatibility of Directive 2005/35/EC on ship-source pollution
with international law and principles of European Law. As in the case of Commission v
Council (C-176/03) the ECJ found that the police and judicial co-operation in criminal
matters provisions in Title VI of the EU Treaty had been incorrectly used as the legal
basis for the adoption of a the measure which ultimately served the achievement of a first
pillar policy; the protection of the environment. The ECJ has now found that the same
basis was also incorrectly used by the Council for the adoption of Framework Decision
2005/667 which supplemented the Ship-Source Pollution Directive. Whilst the
Commission was in favour of the discharge of polluting substances by ships being made
a criminal offence, and of penalties being adopted at national level in the event of the
infringement of Community regulations concerning ship-source pollution, it was of the
opinion that the Framework Decision was not the appropriate legal instrument with
which to impose on Member States an obligation to criminalise the illicit discharge of
polluting substances at sea and to establish corresponding criminal penalties at national
level. The Commission considered that Article 80(2) of the EC Treaty, dealing with
transport, and used as the legal basis for the Directive, provided the basis requiring the
Member States to provide for penalties including, if appropriate, criminal penalties, at
national level where this proved necessary. This could be achieved within the
competences which the Community possessed for the purpose of achieving the
objectives set out in Article 2 EC.
The ECJ found that the Court’s task was to ensure that acts under Title VI did not
encroach upon the powers conferred by the EC Treaty on the Community. Common
transport policy was one of the foundations of the Community and as Article 80(2) did
not lay down any explicit limitations, the Community legislature had broad legislative
powers and competence under it. Moreover, since requirements relating to environmental
protection had, according to Article 6 EC, to ‘be integrated into the definition and
implementation of … Community policies and activities’, such protection had to be
regarded as an objective which also formed part of the common transport policy. The
Community legislature could therefore, on the basis of Article 80(2) EC, decide to
promote environmental protection.
The choice of legal basis for a Community measure had rest on objective factors which
were amenable to judicial review, including in particular the aim and the content of the
measure. The preamble to Decision 2005/667 stated that its purpose was to enhance
maritime safety and improve protection of the marine environment against ship-source
pollution, and that it was intended to approximate certain legislation of the Member
States in order to avoid a recurrence of damage like that brought about by the sinking of
the oil tanker, the Prestige. Although it was true that, as a general rule, neither criminal
law nor the rules of criminal procedure fell within the Community’s competence, the fact
remained that when the application of effective, proportionate and dissuasive criminal
penalties by the competent national authorities was an essential measure for combating
37
serious environmental offences, the Community legislature could require the Member
States to introduce such penalties in order to ensure that the rules which it laid down in
that field were fully effective. In the present case, the provisions laid down in Decision
2005/667 (like those of Decision 2003/80) related to conduct which was likely to cause
particularly serious environmental damage as a result, in this case, of the infringement of
the Community rules on maritime safety.
It was clear that the Council had taken the view that criminal penalties were necessary to
ensure compliance with the Community rules laid down in the field of maritime safety.
Articles 2, 3 and 5 of Decision 2005/667 had to be regarded as being essentially aimed at
improving maritime safety, as well as environmental protection, and could have been
validly adopted on the basis of Article 80(2) EC.
The Court also found that, contrary to the submission of the Commission, the
determination of the type and level of the criminal penalties to be applied did not fall
within the Community’s sphere of competence. It followed that the Community
legislature could not adopt provisions such as Articles 4 and 6 of Decision 2005/667,
since those articles related to the type and level of the applicable criminal penalties.
Consequently, those provisions were not adopted in infringement of Article 47 EU. In the
light of the those findings, the Court concluded that Decision 2005/667 encroached on the
competence which Article 80(2) EC attributed to the Community, infringed Article 47
EU and, being indivisible, had to be annulled in its entirety.
EIA
An appeal against the Administrative Court decision in R (Horner) v Lancashire CC
was dismissed by the Court of Appeal [2007] EWCA Civ 784. The case concerned an
application for judicial review of the grant of planning permission for the erection at a
cement works of machinery to handle animal waste derived fuel. The claimant was a
local farmer who argued that the grant should not have been made without the
undertaking of an Environmental Impact Assessment. The claimant’s challenge was
based upon three grounds. First, she submitted that the development was of a nature
which required EIA, arguably falling within a number of “projects” under the Town and
Country Planning (Environmental Impact Assessment) (England and Wales) Regulations
1999. These were submitted to be either a “waste incineration installation” under
Schedule 1, Classes 9 and 10 or Schedule 2, Class 11(b), or an “extension to an existing
installation” under Schedule 2, Classes 13(a) and 5(b) of the 1999 Regulations. Secondly,
the claimant argued that one of the permission conditions was irrational in that it did not
tie in the burning of the fuel to the manufacture of cement. Thirdly, it was submitted that
the defendant had failed to consider the waste management objectives found in the Waste
Management Licensing Regulations 1991, Schedule 2 para. 4, and the fulfilment of those
objectives found in policies contained in the Waste Local Plan and the National Waste
Strategy 2000, and had failed to consider the Best Practicable Environmental Option for
the disposal of waste as required by those policies. Ouseley J dismissed the application,
finding that the meaning of the various classes in the 1999 Regulations was a matter of
38
law, so that the meaning could be ascertained by reference to the defining characteristics
of the relevant class, but that the application of the phrase, adopting the correct approach
in law, to the particular facts of an individual case, was a matter of fact and degree,
subject to challenge only on conventional public law grounds. The language of the
application itself and the surrounding facts had demonstrated that the proposal or project
was integral to the manufacture of cement. It was also clear that the proposed
development could not possibly have exceeded the relevant threshold of 1000 square
metres for Schedule 2 Class 13(a) and 5(b) of the 1999 Regulations. Nor had the
development fallen within the class of a “waste incineration project” as the machinery
involved no burning but it merely stored and fed the waste before it was burnt elsewhere,
and where a new installation formed an integral part of a larger works, the relevant class
for the purposes of the EIA regulations was that which dealt with extensions to whatever
class of works those larger works fell into, unless the new works had changed the
character of those larger works. The defendant had determined that no material change of
use had occurred, and so the proposal had been for the extension of a cement production
process.
Ouseley J considered that in determining the correct class of installation what mattered
was the purpose or the function of the installation, rather than the environmental effects
of the process, so that, although it was an effect of the operation as a whole that the fuel
was burned, it was as a whole or in isolation, an installation for the manufacture of
cement, and not for waste disposal. If the operation could be said to be a waste related
activity at all it was for the recovery of waste rather than its disposal, and there was no
reason for not treating the 1999 Regulations as distinguishing between disposal and
recovery installations. As to the condition challenged as irrational, Ouseley J found that
this would procure the removal of the equipment at the same time as the rest of the
equipment and structures became redundant on the site, and was lawful. The waste
management objectives and policies had not applied because although the project for
which planning permission was sought was related to the use of waste as an energy
source, i.e. to its recovery, it was not a proposal “for the incineration” of animal waste.
Finally, in considering the BPEO for waste disposal there was a limit to the extent to
which a waste planning authority had to consider alternatives before it reached a
conclusion on what it was satisfied was an environmentally acceptable application which
related to the recovery of waste. The defendant had considered the relevant objectives
and policies and any specific consideration of BPEO would inevitably have led to the
same conclusions. In any event, BPEO was not the ruling consideration but one of a
number of objectives which had to be balanced in the context of each case.
The claimant’s appeal was on the grounds (1) that Ouseley J had erred in holding that the
proposed development could not possibly have exceeded the relevant threshold of 1000
square metres for Schedule 2 Class 13(a) and 5(b) of the 1999 Regulations – there being
no “new floorspace” so that the threshold was not an appropriate criterion to apply, and
there should instead have been consideration of the individual circumstances of whether
an EIA was required; and (2) that if, contrary to Ouseley J’s ruling, the defendant had
erred in law in failing to give proper consideration to the principles of BPEO, it was
relevant to his decision to refuse relief that the defendant would have made the same
39
decision whether or not it had given proper consideration to those principles. Auld LJ
found that the meaning of “floorspace” should be interpreted widely to achieve the
Directive’s objectives and the definitions in the 1999 Regulations and the Town and
Country Planning Act 1990 s.336(1) of “floorspace” and “building” indicated that the
range of meaning of floorspace was wide enough to be a marker of scale in any structure
or erection. Given the wide variety of developments to which class 13(a) change or
extension of development provisions applied, the threshold as applied by class 13(a) was
equally not confined to conventional floorspace. Ouseley J’s application of that broader
meaning to the measurable base or floor area of the silo had been well within the range of
reasonable decisions open to him. Replacement of the “floorspace” criterion, as a default
mechanism, in the context of class 13(a) with a requirement to consider the individual
circumstances of projects would be to require a screening opinion in almost every case,
which would fundamentally undermine the structure of the 1999 Regulations. There was
no basis for introducing a wider case-by-case approach than already provided to meet any
perceived lack of appropriateness or adequacy of the class 13(a) size threshold.
On the BPEO point, the defendant had effectively considered all the relevant objectives
under the Waste Management Regulations, but the issue raised necessarily involved
consideration of the impact of BPEO principles on the planning process, in particular,
their role as compared with that of EIA requirements. There was an important distinction
to be drawn between an environmental impact assessment and consideration of the
principles of the policy where either or both were required. An EIA had a two-fold
purpose: first to produce an assessment that could be weighed in the planning balance and
second to help to inform the public of the substantive issues in the case. The BPEO
principles did not have that dual role; they were relevant, albeit importantly, to the
balance of planning considerations in the decision-making process, namely as to whether
the grant of permission would be in line with the relevant waste objectives. A judge,
when considering the lawfulness of a planning permission against the exercise of the
local authority's balance of material planning considerations was entitled, subject to
Wednesbury constraints, to form a view as to whether in the circumstances the omission
or inadequate consideration of BPEO as one of the material considerations would have
made any difference. If, as in the present case, a judge held that it would not, given the
paucity of practicable lines of enquiry open to it, that was a relevant consideration to his
decision that the permission was legally valid. Whilst those findings made consideration
of the question of discretion unnecessary, Ouseley J’s contingent view on the issue could
not possibly be considered as Wednesbury irrational.
The House of Lords has declined a petition for leave to appeal the Court of Appeal
decision, on the basis that there was no point of sufficient public importance to be argued.
On 21-23 January the House of Lords heard the appeal in another waste derived fuel case,
R (Pallikaropoulos) v Environment Agency. This raises issues of the required
information in PPC applications, the applicability of EIA requirements to the PPC
process where waste-derived fuels are being permitted, and the approach to quashing as
relief in cases where there has been procedural unfairness.
40
Another notable issue under consideration in EIA is the requirement to give reasons
where a screening decision is made not to require EIA. That issue has recently been
referred to the ECJ by the Court of Appeal, in R (Mellor) v Secretary of State for
Communities and Local Government (21 January 2008). The issue is whether R v
Secretary of State, ex parte Marson [1998] Env LR 761 was correctly decided in the
light of the ECJ decisions in Case C-87/02 and C-83/03 Commission v. Italy.
A reminder of the potential pitfalls in the area of PPC/EIA is provided by R (Day) v
Environment Agency (5 December 2007) where Sullivan J quashed by agreement a
permit issued by the Agency to Veolia to operate a proposed municipal waste incinerator
in Sussex, on the basis that insufficient consideration and reasons had been given to the
issue of carbon dioxide emissions.
In Dicken v Aylesbury Vale District Council [2007] EWCA Civ 851, the Court of
Appeal reaffirmed that in matters of screening, the test is irrationality and that there is a
risk of claimants over-complicating what is essence is a relatively straightforward matter.
Provided the authority asks itself the right question and arrives at a conclusion within the
bounds of reason and the four corners of the evidence before it, the decision cannot be
categorized as unlawful. The issue is whether there is anything of substance which
requires debate through the democratic EIA process – in considering that question it is
permissible for the authority to have regard to plainly effective remedial measures
proposed, whether these are included as part and parcel of the development itself (as in
this case) or as mitigating measures. The case also is useful in confirming that potential
impacts on property values are not per se environmental impacts within the EIA system,
despite the reference to “material assets” in the Directive.
Nature conservation issues
In R (on the application of Buglife – the Invertebrate Conservation Trust) v
Thurrock Thames Gateway Development Corporation and Rosemound
Developments Ltd [2008] EWHC 475, Buglife challenged the grant of permission for
development of a Royal Mail distribution depot on the site of the former power station in
Thurrock. The relevant legislative background was that since 1st October 2006 all local
planning authorities, are required by section 40(1) of the Natural Environment and Rural
Communities Act 2006: "... in exercising their functions, to have regard so far as is
consistent with the proper exercise of those functions, to the purpose of conserving
biodiversity." Section 74 of the Countryside and Rights of Way Act 2000 established a
duty on Ministers of the Crown to have regard so far as is consistent with the proper
exercise of their functions "to the purpose of conserving biological diversity in
accordance with the Convention", a reference to the United Nations Environmental
Programme Convention on Biological Diversity of 1992. One of the means by which that
duty may be performed is set out in sub-section 3: "... to promote the taking by others of
such steps as appear to the authority to be reasonably practicable to further conservation
of the living organisms and types of habitat included in any list published by the authority
under this section."
41
The primary statutory duty under section 40 of the 2006 Act is supplemented by National
Policy and in particular Planning Policy Statement 9 the final paragraph of which
concludes that: "Planning authorities should refuse permission where harm to the species
or their habitats would result, unless the need for and benefits of the development clearly
outweigh that harm."
Buglife challenged the lawfulness of the decision on two main grounds: (1) the decisionmaking body did not apply the policy guidance (2) the means by which it dealt with the
environmental impact of the development which it permitted simply put over for another
day assessment and the means of dealing with it.
Buglife argued that the relevant planning documents (officers’ report and planning
permission) showed that neither the officers nor the committee went through a step-bystep process as required by PPS9. The Judge accepted that they did not do so expressly.
However the Claimants argued that having failed to follow a step-by-step process, the
decision made was procedurally flawed and must be quashed and submitted for further
consideration, by the Court. Mitting J noted in his judgment that a benevolent
construction should be given to planning decisions and a fortiori to the reports of
planning officers to decision-makers. Merely because something is not expressly set out
in a document does not mean that it has been overlooked. Merely because a step-by-step
approach, as on one reading might be thought to be required by the guidance, has not
been followed, it does not automatically follow that the decision should be quashed. What
is necessary, he held, is to look behind the words and see what in substance has been
decided. What in substance has been decided here is that by taking the appropriate
mitigation and phasing measures approved by Natural England and specified in the
planning permission and section 106 agreement, the harm which would otherwise be
caused to this site will not be long-term and, when taken together with the impact of this
development on adjoining land, will be no more than temporary. It is fair to describe such
harm as not "significant harm". Accordingly, it was not necessary for the decision-maker
to go through the steps suggested in the policy guidance and look first for alternative
sites, then to go on to consider mitigation, then compensation, and then decide whether or
not to refuse if significant harm remained. The simple reason was that, in the view of the
decision-maker, the short-term harm alleviated by phasing measures was not significant.
If the decision-maker had not reached that view, then it would have been necessary for
the committee to consider its primary statutory obligation under section 136(2) of the
1980 Act.
As regards the environmental impact assessment, although it was true that the detail of
the mitigation and phasing and compensatory measures that were required to be taken
were not fully spelt out in the documents, nevertheless there could be no question but that
in compliance with the EIA Regulations, a very careful and thorough environmental
assessment was made and conclusions reached which addressed the impact of the
development upon biodiversity and ecological factors. This was not a case in which those
matters have simply been put off for determination on another day. It was true that, the
precise impact on any part of this site or on any part of any other adjoining land of this
development and the remedial measures could not be finally assessed until after the
42
development had been undertaken. There was laid out in the section 106 agreement and
in conditions 29 and 30 an enforceable and sufficiently detailed means of dealing with the
impact upon the environment of this development.
The discussion at the end of the judgment makes clear that the Claimants had been
awarded costs protection. Having lost the judicial review their liability to pay the
corporation’s costs was capped at £10,000. The third party unsuccessfully applied for
costs in respect of one aspect of the argument which it said merited it being separately
represented. The Court was not prepared to depart from the general rule that only one set
of costs is awarded against a losing claimant.
An unsuccessful challenge on nature conservation grounds (the case is also useful on
bias) was brought in R (Lewis) v Redcar and Cleveland Borough Council [2007]
EWHC 3166 Admin, where it was argued that no “appropriate assessment” had been
conducted on the grant of outline planning permission for a mixed residential and
commercial development on an SPA. Jackson J held that no specific method for carrying
out an assessment was required and the method adopted could not be said to have been
unlawful. Also, the necessary high degree of certainty that the plan or project would not
adversely affect the integrity of the site had been attained. The developer had provided
the necessary information, the Council had consulted with Natural England and RSPB
and had responded to their concerns. The relevant officer had undertaken an iterative
process which could properly be described as making an appropriate assessment.
SEA
Finally, we are starting to see challenges to decisions based on the SEA Directive
2001/42/EC. In An Application by Seaport Investments Limited [2007] NIQB 62,
Wetherup J held that the procedures used in respect of draft plans had failed to comply
with the Directive in various respects, including the lack in the Northern Irish system of
an independent consultation body as required by Article 6.2. Another issue was the
failure of the domestic legislation to set sufficiently precise timeframes for consultation,
so as to infringe the principle of legal certainty. It was also held that there had been
inadequacies in the environmental reports in various respects and that there had not been
substantial compliance with the requirements of the Directive. Emphasis was also placed
in the judgment on the need for the environmental report and draft plan to keep in step so
that the report could properly influence the plan, which would not be the case if the plan
became largely settled, even as a draft, before publication of the environmental report.
R (Howsmoor Developments Ltd) v South Gloucester District Council [2008] EWHC
262 (Admin) is the first case on SEA in the English courts. It concerned the adoption of
the Emersons Green East Development Brief by the defendant council. Emersons Green
has been identified as a major mixed use development site in development plans since
1985. It was claimed that the Sustainability Appraisal and the SEA within it, within the
Brief, did not comply with the SEA Regulations or with government guidance. It was
held to have been open to the planning authority to conclude that the existing local plan
43
had allocated a multi-modal interchange and bridge in Emersons Green East, and that
accordingly the Brief could provide for these facilities there. The Brief provided an
indicative framework as to how the local plan policy would be carried forward – it did
not itself make an allocation. Whilst the local plan had been adopted before the SEA
Directive came into force, the Planning and Compulsory Purchase Act 2004 made it
mandatory for supplementary planning documents, such as the Brief, to be subject to an
SA, and also SEA was required. It was possible in principle to satisfy both requirements
through a single document. It was argued that under articles 5 and 13 of the SEA
Directive, the planning authority had been required to subject each policy of the local
plan to SEA. This was summarily rejected as amounting to an attempt to give the
Directive retrospective effect by submitting policies adopted before the relevant date to
the new regime. There being a lawful local plan, the strategic development with which
the Brief was concerned was related simply to indicative proposals for siting the MMI
and bridge. There was no obligation to assess the rationale for and alternatives to
development overall, or the environmental considerations of the allocation that had been
made by the local plan, or to justify the overall mix of development, or the general
infrastructure requirements. The Brief assessed the locational criteria for the MMI and
bridge, which was all that was required of it.
Commercial cases
Not too many cases on the commercial aspects of environmental law tend to get reported,
so it is useful to note three.
In Lambson Fine Chemicals Ltd v Merlion Housing Limited [2008] EWHC 168 TCC,
Lambson was a speciality chemical company which had occupied a 40 acre site at
Castleford since 1975, it previously having been used for chemical manufacture since the
1860s and by Laporte for sulphuric acid manufacture since the 1940s. It sold the site to
Merlion for £12.25 million, but leased it back in order to carry out demolition works,
Merlion retaining part of the price. Merlion argued that it had entered into the contract on
the basis of a written representation from a director of Lambson as to the extent of
contamination, and that the representation had been made fraudulently, on the basis that
over 14,000 tonnes of soil, much larger quantities than expected, had been contaminated
by “Blue Billy” gasworks waste, which had been imported for use in sulphuric acid
production. It was known that Blue Billy and cyanide were present in parts of the site
from previous investigations, and URS had also mentioned the likelihood of the import of
the material in their desktop report in the context of this transaction. URS were given
free access to the property and drilled some 37 boreholes, but (for unexplained reasons)
only two were in the central area of the site. Those two that were drilled there showed
very high levels of contamination. The URS report opined that a provisional sum of £4.5
million should be allocated to address the principal soil and groundwater issues; that
figure fluctuated markedly in later discussions. At the request of the purchaser the
director of Lambson confirmed in a letter that he had no knowledge of any further
contamination than that specifically identified in the URS report; also noting agreement
that the borehole results indicated a level of contamination for the property as a whole
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and therefore should not be construed as meaning that there was only contamination in
the boreholes. In the contract itself the purchaser acknowledged that it bought subject to
all matters that would be evident on an inspection of the property and that it had been
given permission to carry out its own investigations. After vacation of the property by
Lambson, the purchaser discovered large amounts of Blue Billy in the central area of the
site.
The case turned on the construction of the letter, which was incorporated into the
contract. As part of the factual matrix for that exercise Judge Peter Coulson QC had
regard to the extremely valuable nature of the property for redevelopment, and that its
value – in the sense of what the purchaser was willing to pay – was not directly affected
by the contamination. The price had been agreed some time before the URS report was
available and was not altered by the “wildly fluctuating range” of potential remediation
costs. Also, both parties were commercially experienced and sophisticated organizations,
keen to get the best deal for themselves, and the purchaser was an experienced property
developer. It was not the case of a “commercial innocent” entirely dependent on
information supplied by a cunning seller. The seller had provided full disclosure, and it
was obvious to everyone that the property was subject to heavy and widespread
contamination. The URS report was the subject of critical comment by the judge for
failure to deal with Blue Billy adequately – however, the report had referred to earlier
reports by Travers Morgan which identified the presence of Blue Billy in the central area,
and as a matter of common sense the director’s letter was to be construed accordingly. In
particular, it was clear to all that Blue Billy found in other areas had been removed from
the central area, and that there had been no comprehensive programme to ensure that it
had all been removed. The qualification inserted in the letter by the director was
significant and was entirely consistent with that position. The letter was not an actionable
misrepresentation. Moreover, the terms of the agreement were such as to assign the risk
of unforeseen ground conditions fairly and squarely with the purchaser.
Another case on ground conditions is Aldi Stores Ltd v WSP Group PLC and
Aspinwall & Co Ltd [2007] EWCA Civ 1260. WSP and Aspinwall had advised a
building company which had built stores for Aldi and had given collateral warranties for
Aldi’s benefit. Aldi pursued the builder, who went into liquidation, then their insurers,
before issuing further proceedings against the consultants. The claims were struck out as
abusive, on the basis they should have been brought as part of the original action. The
appeal was allowed on the basis that a broad merits based approach should have been
adopted and the fact that a claim could have been brought in an original action did not in
itself make it abusive to raise in a second set ot proceedings: see Johnson v Gore Wood
& Co (No. 1) [2002] 2 AC 1. It could not be said that Aldi had acted culpably or
improperly.
Finally, in Wasa International Insurance Co Ltd v Lexington Insurance Co and
AFG Insurance Ltd [2008] EWCA Civ 150 the Court of Appeal considered an appeal
by a reinsurer on a claim for coverage under a property damage policy where an
aluminium company had been liable for extensive clean up costs of sites in the US.
Under Pennsylvanian law, it had been held that the insurer was liable to cover these costs,
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some of the damage having occurred during the period the policy was on risk. The
reinsurer argued that they were not liable since the reinsurance policy was subject to
English law. The court held however, that the coverage period and policy wording were
the same for the insurance and reinsurance contracts, and that they should generally
therefore be given the same interpretation: Forsikringsaktieselskapet Vesta v Butcher
[1989] AC 852. The reinsurer had taken the risk of changes in the law in the relevant US
jurisdiction.
Stephen Tromans
39 Essex Street
London WC2R 3AT
stephen.tromans@39essex.com
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