CASES
CONTAMINATED LAND. On 14 and 15 June, in Circular Facilities (London) Limited v Sevenoaks District Council, the Sevenoaks Magistrates Court heard the very first appeal of a Remediation Notice issued under the Contaminated Land Regime set out in Part IIA of the Environmental Protection Act 1990 ("EPA 1990").
The site in question had been a brick and tile works until the early 1900s. During the 1960s and 1970s, redundant clay pits at the site were filled in with, amongst other things, organic material. In 1978, a Mr Scott bought the site, selling it one year later to Circular Facilities, a developer. Mr Scott and Circular Facilities were an informal partnership, with Mr Scott being responsible for building nine houses on Circular Facilities’ behalf.
A geotechnical report submitted to the planning authority as part of the planning process mentioned the presence of organic materials and gases resulting from their decomposition, showing that Circular Facilities must have known about their presence.
The site was determined by the Council to be "contaminated land" under Part IIA because the organic fill materials were steadily decomposing and emitting carbon dioxide and methane in quantities that posed a risk to the health of the residents and to their houses. The Council identified Circular Facilities as an "appropriate person" (ie someone who had "caused or knowingly permitted" the presence of the organic material and gases) and served a Remediation Notice on it. No other persons were served. Mr Scott had died some years previously, thus preventing his identification under Part IIA as an appropriate person. Circular Facilities appealed the Remediation Notice on the bases, among others, that it was not the "appropriate person" in respect of the contamination and that the former owner of the land, who had been responsible for filling the clay pits, ought to have been determined to be an appropriate person.
The Court determined that Circular Facilities was an appropriate person. It knew about the organic material and the gases due to the report on the planning file, which it must have considered. Failing to take appropriate steps to address the problem during its redevelopment of the site thus made Circular Facilities a "knowing permitter" of the contamination. The Court also concluded that the former owner of the site was not an appropriate person. He was, at least in part, responsible for filling the clay pits and could be said to have "caused or knowingly permitted" the presence of the organic matter. However, he satisfied a Part IIA "exclusion test" because Circular Facilities subsequently introduced people and houses to the site, thus resulting in its determination as contaminated land.
DEFINITION OF WASTE. On 17 June, in R (on the application of Paul Rackham Ltd) v Swaffham Magistrates Court (defendant) and the Environment Agency (interested party), the High Court was asked once again to consider the legal definition of "waste".
Mr Rackham contended that composted material (made at his farm in 1999 and 2000 from waste-derived material, green waste and farm manure) was not waste. The Environment Agency ("EA") disagreed and brought a prosecution in respect of alleged offences relating to the keeping, treatment and deposit of controlled waste. Mr Rackham applied by way of judicial review for a stay of the prosecution, arguing that the legislation under which the EA brought the prosecution was incompatible with Article 7 of the European Convention on Human Rights ("ECHR"), as implemented by the Human Rights Act 1998, which provides that nobody shall be guilty of a criminal offence for any act or omission which did not constitute a criminal offence at the time it was committed.
He argued that in 1999, the definition of waste set out in Government Circular 11/94 and the decision in Mayer Parry was such that the composted material was not waste. The decision of the European Court of Justice ("ECJ") in ARCO Chemie in 2002 changed the definition to his detriment. The Court thought that it was not appropriate to attempt, by way of judicial review on such incomplete facts, to intervene in the progress of the prosecution. The EA was entitled to lay its account before the Court. Nevertheless, the Court traced through the developments in the case law and decided that Mr Rackham had overstated the difference between the ARCO case and the judgments that preceded it. The ARCO case was merely an example of how the law develops by reference to particular facts, which facts can call for particular interpretations to be applied to legislative provisions. It would be a matter for the judge hearing the prosecution to apply the legislation and the Waste Framework Directive.
HUMAN RIGHTS/PLANNING. On 12 July, in David Lough & Ors v First Secretary of State and Bankside Developments Limited, the Court of Appeal considered loss in value of land and a landowner’s loss of amenity resulting from a neighbouring development and whether these amounted to an infringement of human rights.
Bankside won planning permission on appeal, with the planning inspector deciding that the benefits of redevelopment justified a departure from the policy set out in the local authority’s development plan to prevent development which would involve nuisance or loss of amenity to adjacent users or nearby residents. Local residents challenged this decision on the basis of Article 8 of the ECHR which provides that everyone has the right to respect for his private and family life.
The Court held that departure from a development plan, even if it is from a provision entitled "protection of amenity", does not of itself involve a breach of Article 8 of the ECHR. There is a large margin of appreciation left to Governments in striking a fair balance between the rights of individuals to respect for their private lives and homes, and the rights of others and the community as a whole. While the degree of seriousness to trigger a breach must depend on the facts, it must be substantial.
NUISANCE CAUSED BY FLOODING. On 13 July, the Court of Appeal gave its judgment in Arscott and Ors v The Coal Authority and Ors.
The High Court decision, which the claimants appealed, is summarised in the Winter 2003 Digest. The appeal was dismissed. The Court of Appeal confirmed that property owners are entitled to take preventative action against flooding, even if as a result of their action, water that would otherwise have flowed onto their land is diverted onto someone else’s property.
WATER POLLUTION. On 15 July, in Express Ltd v Environment Agency, the Divisional Court considered the qualities required of a substance for it to constitute "polluting matter" and the criminal liability of persons who, although not actively engaged in operations that have the potential to cause water pollution, nevertheless allow those operations to take place on their land.
Express permitted a customer to use its dairy depot to take delivery of cream from an outside supplier. Ten litres of cream were spilled and escaped into a watercourse when the customer transferred cream from one vehicle to another. The customer pleaded guilty to a breach of section 85(1) of the Water Resources Act 1991 for causing or knowingly permitting poisonous, noxious or polluting matter or any solid waste matter to enter controlled waters.
Express was also charged with the offence on the basis of section 217(3) of the 1991 Act which provides that where the commission of a water pollution offence by one person is due to the act or default of some other person, that person may also be charged with the offence. Express was convicted. It subsequently appealed, arguing that the breach of section 85(1) was not due to its act or default, and that in any event, cream was not poisonous, noxious or polluting matter.
The Court held that:
- if a landowner is going to permit an operation on his land which gives rise to a risk of pollution, it must carry out a risk assessment and respond to what the assessment reveals. Otherwise, if pollution occurs, it may be impossible for the landowner to say that the offence committed by those using its land is not due to one or more of its acts or defaults. Express had not conducted a full risk assessment; and
- "polluting matter" need not be either poisonous or noxious. It is sufficient if it, for example, stains or taints the water as the cream did.
LANDFILL TAX. On 30 July, the Court of Appeal gave judgment in the case of Ebbcliff Ltd v Customs and Excise Commissioners (see High Court case summary in the Spring 2004 Digest).
The Court of Appeal agreed that the landfill tax exemption where there is a disposal in the course of restoration of a landfill (Section 43(C) of the Finance Act 1996) applies to the final layer of soils for the purpose of restoration only and not to filling the landfill or the capping layer. Ebbcliff ’s appeal was dismissed.
NEWS
ANIMAL BY-PRODUCTS. In May, DEFRA published new Guidance Notes for the food industry on the disposal of raw meat and raw fish and former foodstuffs of animal origin.
The Guidance Notes are aimed at the food industry but will also be of interest to enforcement authorities and other businesses such as those that handle waste and manage disposal. The Guidance Notes follow the coming into force in England on 1 July 2003 of the Animal By-Products Regulations 2003.
FUEL STORAGE. In May, the EA published "Wet Stock Reconciliation at Fuel Storage Facilities: An Operator’s Guide".
The Guide is based on experience of inspections carried out at petrol filling stations located on groundwater source protection zones. It became evident from the inspections that many of the stations did not have adequate leak detection systems in place and some sites had no wet stock reconciliation procedures.
SOLVENT EMISSIONS. On 13 May, DEFRA published Guidance on the term "shortest possible time" which is used in the Solvent Emissions (England and Wales) Regulations 2004 and the equivalent regulations for Scotland.
The term "shortest possible time" is used in connection with the substitution of certain volatile organic compounds ("VOCs") and compliance with emission limit values applicable to these VOCs.
SOIL PROTECTION. On 20 May, DEFRA issued "The First Soil Action Plan for England: 2004-2006".
The Action Plan draws together all of the ongoing work on soils and identifies 52 actions for Government and others to take forward to improve the protection and management of soils within a wide range of land uses. The Action Plan is complemented by an EA report on the State of Soils in England and Wales.
IPPC. In June, the EA updated its Guidance on the definition of a "change in operation" or a "substantial change" for the purposes of the IPPC regime.
Changes in the operation of, and substantial changes to, installations are important regulatory triggers under the PPC regime. The Guidance has been revised to take account of the EC Directives on large combustion plant, solvent emissions and waste incineration and the relevant implementing Regulations.
SOIL CONTAMINATION. On 9 June, the EA published four new Reports in its "TOX" series on contaminated soil. The reports are on vinyl chloride, tetrachloroethane, tetrachloroethene and trichloroethane.
The Reports assess the risks to human health from these specified contaminants in the soil. Eighteen TOX reports have been prepared so far.
IPPC. On 29 June, the EA published updated Guidance on the production of coke, iron and steel for the purposes of the IPPC regime.
The aim of the Guidance (Sector Guidance Note IPPC S2.01) is to provide operators and regulators with advice on indicative standards of operation and environmental performance relevant to this sector. It also aims to provide a clear structure and methodology for operators to follow to ensure they address adequately all aspects of the PPC Regulations and relevant aspects of other environmental regulations.
WASTE. In July, the EA updated its "Guidance on Technical Competence for Operators of Authorised Waste Facilities".
"Technically competent management" is a requirement of the Waste Management Licensing Regime created under Part II of the EPA 1990 and of the PPC Regulations (in relation to "specified waste management activities"). This Guidance is applicable under both regimes. The Guidance is intended for use by EA staff and operators of licensed or permitted activities, as well as applicants for licences or permits in England and Wales.
ENFORCEMENT. In July, the EA produced its "Sixth Spotlight Report on Business Environmental Performance in England and Wales".
In particular, the Report mentions the following:
- 266 companies were prosecuted and 11 company directors were convicted for environmental crimes in 2003.
- The average fine imposed on businesses for environmental crimes in 2003 was £8412. This is £210 less than the equivalent figure for 2002.
LAPC/MINERALS. On 6 July, DEFRA published 14 Process Guidance notes for minerals processes regulated by local authorities under the PPC regime.
ENVIRONMENTAL JUDICIAL REVIEW. On 7 July, the Environment Minister provided details of costs awards in judicial review proceedings against the EA.
The figures show that there have been 19 judicial review applications in the High Court against the EA since 1997, of which only 4 were successful. Cost awards against the EA were made in 3 cases and averaged £32,000. No costs awards were made against the applicants in 5 of the 13 unsuccessful cases.
WASTE. On 20 July, Sections 1 and 17 of the Waste and Emissions Trading Act 2003 came into force.
Section 1 requires the Secretary of State by regulations to specify the maximum amount by weight of biodegradable municipal waste allowed to be sent to landfills in target years from the whole of, and from each country of, the UK.
Section 17 requires the Secretary of State to have a strategy for reducing both the amount of biodegradable waste from England that goes to landfills and the amount of biodegradable waste from outside England that goes to landfills in England.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
