In what is believed to be the first prosecution of its kind brought by the National Rivers Authority a West Yorkshire Company was fined £5,000 together with prosecution costs of £12,986.50 and the payment of the maximum compensation the Court could award of £5,000. The company was charged with disposing of controlled waste in a manner likely to cause pollution of the environment. It was estimated that 30,000 fish were killed by a toxic chemical entering sewers and then being discharged into the River Calder. Substantial compensation will be sought through the Civil Courts if necessary, in order to re-stock the river.
This case was unique for two reasons. First, the Environmental Protection Act 1990 was used in respect of river pollution thus avoiding the use of the consent to discharge defence under the Water Resources Act 1991. Secondly, the defendant confessed to the pollution after proceedings were brought for failing to respond to a request for information under Section 202 of the Water Resources Act. The company had said that the right to silence was a reasonable excuse for the purposes of the provision. However recent judicial authority considering similar legislation designed to combat serious fraud had held that the excuse provision did not include the right to silence which had intentionally been taken away by Parliament in respect of such offences. Presumably Parliament also viewed pollution as the type of offence which justified encroaching on fundamental human rights.
Costs Disparity
There is usually a marked difference in the amount of costs sought by HMIP as against the NRA and such costs do not always reflect the complexity of the case. Recently HMIP's costs were challenged in an action involving 75 charges of breaching the conditions of an authorisation. The Court reduced the costs by over £4,000. The HMIP inspector's rate was nearly twice the Court scale for expert witnesses. Failure by the HMIP to include fees collected from operators in their calculation of costs (consisting almost entirely of overheads) was thought to be the influencing factor.
Jobs For Costs
In another case involving a chemical spillage, the Court used its powers under section 26 of the Environmental Protection Act which states that it can order improvement works to be undertaken instead of, or in addition to, imposing a fine. The Court was attracted to this course of action and, given the circumstances, a much lower fine than could have been expected was imposed together with an order to carry out improvements.
Whilst fines are sometimes a necessary reflection of the seriousness of an environmental incident, often, on the facts, it is the employee who has disobeyed instructions who is really at fault. Large fines in such circumstances are self defeating eating into capital and reducing a company's competitiveness, already eroded by demands to meet BATNEEC, unlike competitors in countries with less strict environmental regulation. Courts have always been able to take into account improvements which have been made or are proposed as a mitigating factor when deciding what penalty to impose but, historically, this has not been reflected in the penalty imposed in many cases. Section 26 provides a statutory mechanism by which improvements can be encouraged and taken into account, particularly where no serious harm has occurred. RAY CLARKE, Solicitor, Environment Department.
Noise Pollution - Planning For Peace?
Those who have suffered under the tyranny of noisy neighbours will have given three heartfelt cheers for Ernest Wood. In October Mr Wood successfully brought statutory nuisance proceedings against his local authority after enduring nine years of loud music and other noise from a next door Leisure Centre.
For those living in urban areas, noise pollution is a daily fact of life and also a rapidly growing source of anxiety. This is evidenced by the threefold increase in noise complaints recorded by the Institution of Environmental Health Officers: from 712 per million people in 1980 to 2264 per million in 1990. The long term dangers of living and working in noisy conditions are now better understood and people are more likely to complain than in the past.
Planning And Noise
One of the best opportunities to address noise issues comes in the planning process. The Government recently published guidance to local authorities in England on minimising the adverse impact of noise when preparing development plans or considering planning applications.
This Guidance, PPG24, has been two years in the making and is based on principles which appeared in the now cancelled DoE Circular 10/73 Planning and Noise as well as the recommendations of the 1990 Noise Review Working Party.
The Guidance:
Planning By Location
The Guidance reiterates the approach taken in the recent guidance on Planning and Pollution Control (PPG23) (see Environment Law Matters No 8), namely that the planning system is concerned with guiding development to the most appropriate location. When considering a planning application, or preparing a development plan, local authorities should ensure that noise-sensitive developments are separated from major sources of noise (such as road, rail and certain types of industrial development).
In addition, new developments which involve noisy activities should, where possible, be sited away from noise-sensitive land uses. In the Guidance, the Secretary of State specifically provides that housing, hospitals and schools should be regarded as noise-sensitive developments, but leaves it open for local authorities to bring other developments or uses within this definition in development plans.
Where it is not possible to achieve a separation of land uses, local authorities are advised to consider whether it is practicable to control or reduce levels, or to mitigate the impact of noise, through the use of conditions and planning obligations. Examples of model conditions are set out in one of the annexes to the Guidance.
Noise Exposure Categories
Much of the advice in the Guidance on mitigation measures, such as layout and engineering measures and the use of conditions, will be only too familiar to local authorities. The only innovative proposal in the Guidance is the introduction of the concept of Noise Exposure Categories (NECs) for residential development.
The Guidance sets out four NECs (with recommended day and nighttime noise levels):
Conclusion
As with much Government guidance PPG24 appears to fall between two stools. On the one hand the Government doesn't want to place too great a burden on business and on the other it wants to alleviate public concerns about noise pollution. Local authorities will feel that apart from the concept of NECs, PPG24 contains little that is new. The general public find little of comfort in this Guidance save for the general advice on the separation of noisy and noise-sensitive activities. Regrettably, it is possible that, as in Mr Wood's case, more people will be forced to turn to the courts for protection.
Michael Morris, Solicitor, Environment Department.
The above is an extract taken from issue 10 of Environment Law Matters January 1995, published on behalf of Nabarro Nathanson.
Detailed specialist advice should be obtained before taking or refraining from any action as a result of the comments made in this article which are only intended as a brief introduction to the particular subject. Nabarro Nathanson is regulated in the conduct of investment business by the Law Society.
For additional information contact Kevin Wheeler, Nabarro Nathanson, tel 071 491 6982.
This case was unique for two reasons. First, the Environmental Protection Act 1990 was used in respect of river pollution thus avoiding the use of the consent to discharge defence under the Water Resources Act 1991. Secondly, the defendant confessed to the pollution after proceedings were brought for failing to respond to a request for information under Section 202 of the Water Resources Act. The company had said that the right to silence was a reasonable excuse for the purposes of the provision. However recent judicial authority considering similar legislation designed to combat serious fraud had held that the excuse provision did not include the right to silence which had intentionally been taken away by Parliament in respect of such offences. Presumably Parliament also viewed pollution as the type of offence which justified encroaching on fundamental human rights.
Costs Disparity
There is usually a marked difference in the amount of costs sought by HMIP as against the NRA and such costs do not always reflect the complexity of the case. Recently HMIP's costs were challenged in an action involving 75 charges of breaching the conditions of an authorisation. The Court reduced the costs by over £4,000. The HMIP inspector's rate was nearly twice the Court scale for expert witnesses. Failure by the HMIP to include fees collected from operators in their calculation of costs (consisting almost entirely of overheads) was thought to be the influencing factor.
Jobs For Costs
In another case involving a chemical spillage, the Court used its powers under section 26 of the Environmental Protection Act which states that it can order improvement works to be undertaken instead of, or in addition to, imposing a fine. The Court was attracted to this course of action and, given the circumstances, a much lower fine than could have been expected was imposed together with an order to carry out improvements.
Whilst fines are sometimes a necessary reflection of the seriousness of an environmental incident, often, on the facts, it is the employee who has disobeyed instructions who is really at fault. Large fines in such circumstances are self defeating eating into capital and reducing a company's competitiveness, already eroded by demands to meet BATNEEC, unlike competitors in countries with less strict environmental regulation. Courts have always been able to take into account improvements which have been made or are proposed as a mitigating factor when deciding what penalty to impose but, historically, this has not been reflected in the penalty imposed in many cases. Section 26 provides a statutory mechanism by which improvements can be encouraged and taken into account, particularly where no serious harm has occurred. RAY CLARKE, Solicitor, Environment Department.
Noise Pollution - Planning For Peace?
Those who have suffered under the tyranny of noisy neighbours will have given three heartfelt cheers for Ernest Wood. In October Mr Wood successfully brought statutory nuisance proceedings against his local authority after enduring nine years of loud music and other noise from a next door Leisure Centre.
For those living in urban areas, noise pollution is a daily fact of life and also a rapidly growing source of anxiety. This is evidenced by the threefold increase in noise complaints recorded by the Institution of Environmental Health Officers: from 712 per million people in 1980 to 2264 per million in 1990. The long term dangers of living and working in noisy conditions are now better understood and people are more likely to complain than in the past.
Planning And Noise
One of the best opportunities to address noise issues comes in the planning process. The Government recently published guidance to local authorities in England on minimising the adverse impact of noise when preparing development plans or considering planning applications.
This Guidance, PPG24, has been two years in the making and is based on principles which appeared in the now cancelled DoE Circular 10/73 Planning and Noise as well as the recommendations of the 1990 Noise Review Working Party.
The Guidance:
In general terms, the aim of the guidance is to be achieved without placing unreasonable restrictions on development or adding unduly to the cost and administrative burdens on business.
- outlines the considerations to be taken into account in determining planning applications both for noise-sensitive developments and for those activities which will generate noise;
- introduces the concept of Noise Exposure Categories for residential development and recommends appropriate levels for exposure to different sources of noise; and
- advises on the use of conditions to minimise the impact of noise.
Planning By Location
The Guidance reiterates the approach taken in the recent guidance on Planning and Pollution Control (PPG23) (see Environment Law Matters No 8), namely that the planning system is concerned with guiding development to the most appropriate location. When considering a planning application, or preparing a development plan, local authorities should ensure that noise-sensitive developments are separated from major sources of noise (such as road, rail and certain types of industrial development).
In addition, new developments which involve noisy activities should, where possible, be sited away from noise-sensitive land uses. In the Guidance, the Secretary of State specifically provides that housing, hospitals and schools should be regarded as noise-sensitive developments, but leaves it open for local authorities to bring other developments or uses within this definition in development plans.
Where it is not possible to achieve a separation of land uses, local authorities are advised to consider whether it is practicable to control or reduce levels, or to mitigate the impact of noise, through the use of conditions and planning obligations. Examples of model conditions are set out in one of the annexes to the Guidance.
Noise Exposure Categories
Much of the advice in the Guidance on mitigation measures, such as layout and engineering measures and the use of conditions, will be only too familiar to local authorities. The only innovative proposal in the Guidance is the introduction of the concept of Noise Exposure Categories (NECs) for residential development.
The Guidance sets out four NECs (with recommended day and nighttime noise levels):
Category A: where noise is unlikely to be a determining factor in granting planning permission; Category B: where noise should be taken into account when determining an application and, where appropriate, conditions imposed; Category C: where planning permission should not normally be granted but may be, subject to conditions; Category D: where planning permission should normally be refused.However, it is important to note that NECs only apply:
where it is proposed to introduce a residential development into an area with an existing noise source; and where such noise source is transport-related.NECs will not therefore operate to protect existing residential areas from a proposed new noisy industrial development. The explanation given for this in the Guidance, is that the planning system can only be used to impose conditions to protect incoming residential development from an existing noise source, but in general, developers are under no statutory obligation to offer noise protection measures to existing dwellings affected by a proposed new noise source. It is accepted in the Guidance, that where a new development is proposed near a residential area the options to control noise are likely to be more limited than where a residential development is proposed in an area with an existing noise source.
Conclusion
As with much Government guidance PPG24 appears to fall between two stools. On the one hand the Government doesn't want to place too great a burden on business and on the other it wants to alleviate public concerns about noise pollution. Local authorities will feel that apart from the concept of NECs, PPG24 contains little that is new. The general public find little of comfort in this Guidance save for the general advice on the separation of noisy and noise-sensitive activities. Regrettably, it is possible that, as in Mr Wood's case, more people will be forced to turn to the courts for protection.
Michael Morris, Solicitor, Environment Department.
The above is an extract taken from issue 10 of Environment Law Matters January 1995, published on behalf of Nabarro Nathanson.
Detailed specialist advice should be obtained before taking or refraining from any action as a result of the comments made in this article which are only intended as a brief introduction to the particular subject. Nabarro Nathanson is regulated in the conduct of investment business by the Law Society.
For additional information contact Kevin Wheeler, Nabarro Nathanson, tel 071 491 6982.
