UK: BLG Environment and Health & Safety-UK Developments-Spring 2004

Last Updated: 24 June 2004
Article by Valerie Fogleman and John Goodman

CASES

HUMAN RIGHTS/NUISANCE. On 4 December, in Marcic v Thames Water Utilities Ltd, the House of Lords decided, in an action for damage caused by flooding from overloaded sewers, that private remedies under nuisance law or breaches of the Human Rights Act 1998 have no part to play.

Mr Marcic, a homeowner, had suffered repeated and serious flooding from an overloaded public sewerage system since 1992. He claimed against Thames Water (which was the statutory sewerage undertaker for the relevant area) in common law nuisance and under the Human Rights Act 1998, alleging that Thames Water as a public authority had acted incompatibly with his Convention rights under Article 8 (respect for family life and home) and Article 1 of the first protocol (protection of property).

At trial, the nuisance claim was rejected but the human rights claim was upheld. On appeal to the Court of Appeal, both claims were upheld (see Summer 2002 Digest). The House of Lords, however, rejected both claims.

In dismissing the nuisance claim, the House of Lords noted that pursuant to the Water Industry Act 1991, a sewerage undertaker has a general duty to provide a system of public sewers to ensure that its area is drained effectively. The Act expressly excludes actions by individuals for breach of statutory duty, opting instead to empower the Secretary of State and water regulator Ofwat to serve an enforcement order on undertakers who are in breach of their statutory duties. It is only where an enforcement order has been served that an individual may seek damages where breach of the order results in damage.

In this case, no enforcement order had been served on Thames Water. In pursuing a claim under common law nuisance, Mr Marcic was effectively seeking to sidestep the statutory enforcement code. The correct approach would have been for Mr Marcic to get Ofwat to make an enforcement order (with the use of judicial review proceedings if necessary).

In dismissing the human rights claim, it was noted, following the decision of the Grand Chamber of the European Court of Human Rights in the case of Hatton v United Kingdom (see Autumn 2003 Digest), that national institutions, and in particular the national legislature, are accorded a broad discretion in choosing the solution appropriate to their society or creating the machinery for doing so. Although the claimant had clearly suffered, there was nothing to suggest that the statutory scheme as a whole did not comply with the Convention.

ENVIRONMENTAL IMPACT ASSESSMENT. On 16 October, in R (on the application of Jones) v Mansfield District Council, the Court of Appeal reviewed the principles to be applied where a planning authority decides that a proposed project does not require an environmental impact assessment (see the Summer 2003 Digest for the High Court decision).

The Court of Appeal concluded that whether or not a project was likely to have significant effects on the environment was a question of degree calling for the exercise of judgement. It adopted the approach of the High Court which rejected any overriding principle that unless an authority was confident of there being no likely significant effects it must require an environmental assessment, and that any uncertainty must be resolved in favour of an assessment.

The principles, according to the High Court and endorsed by the Court of Appeal, were that the planning authority must make an informed judgement on the basis of the information available to it and having regard to any gaps in the information and to any uncertainties that may exist as to the likelihood of significant effects. The gaps and uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effects. Everything depends on the individual circumstances of the case.

MEANING OF "LANDFILL". On 15 December, in Blackland Park Exploration Ltd v Environment Agency, the Court of Appeal held, in dismissing Blackland’s appeal, that pumping liquid waste back into underground strata after the extraction of water and oil from Blackland’s oil well was banned by the Landfill (England and Wales) Regulations 2002 as a deposit of waste into land (see Autumn 2003 Digest for the High Court decision).

LANDFILL/INSOLVENCY. On 12 December, in Environment Agency v Hillridge Limited and others, the High Court gave a judgment that determined who has access to funds set aside for remediation where a company goes into liquidation.

In 1998, Hillridge (a landfill site operator) applied to the Environment Agency for a modification of its waste management licence. The modification triggered the requirement for Hillridge to make financial provision for the licence. In 2000, Hillridge and the Agency opened a joint trust account (pursuant to the terms of a trust deed) into which Hillridge paid over £350,000.

In 2001, Hillridge entered into voluntary liquidation. The liquidators disclaimed the licence. By this time, works estimated to cost £500,000 needed to be conducted to close the landfill and to ensure its aftercare according to the conditions of the disclaimed licence. The Environment Agency sought a determination as to what should happen to the money in the trust account.

The Court concluded that the waste management licence for the landfill had ceased to exist when it had been disclaimed by the liquidators. It further concluded that, in disclaiming the licence, the liquidators had necessarily disclaimed Hillridge’s interest in the trust account.

The Court further concluded that under the trust deed, the money in the trust account was not released to Hillridge. The trust deed provided that the money in the joint account would only pass to Hillridge when all of its licence/other obligations had been discharged.

The Court also concluded that the Environment Agency was not entitled to the money in the trust account because it ceased to have power to conduct works under the waste management licence after the licence had been disclaimed and, thus, had ceased to exist. Therefore, the Environment Agency could not incur any expenses under the terms of the trust deed.

Therefore the money in the trust account vested in the Crown as bona vacantia because it was no longer owned by anyone and no-one could assert a claim to it.

WASTE. On 5 December 2003, the Gloucester Crown Court fined Cleansing Services Group Ltd £250,000 and ordered it to pay £400,000 costs in respect of 15 breaches of environmental and health and safety regulations.

The prosecution arose out of a serious fire at the company’s Sandhurst site in October 2000. During the investigation into the fire, the Environment Agency discovered that approximately 2400 tonnes of contaminated material had been buried underneath the Sandhurst site in the past.

The sentencing judge thought that there had been clear, serious management failures in key areas across the business and that the company failed to adequately protect its own workers and local residents. According to the Environment Agency, the fine is the largest ever for a case taken by it relating to illegal waste activities.

LANDFILL TAX. On 19 December, in Commissioner of Customs and Excise v Ebbcliff Ltd, the High Court gave a decision that limited the landfill tax exemptions.

Ebbcliff owned a site that was formerly quarried. Substantial remedial work was necessary to render the site suitable for development because of the presence of toxic fill materials resulting from previous unlicensed waste disposal operations before 1970. A planning application was granted in 1995 for landscaping and recontouring the land involving covering the fill materials with inert materials. A waste disposal licence was obtained authorising disposal of inert material. Ebbcliff claimed exemption from landfill tax for the disposal of the inert material either as a restoration of a landfill site or as the refilling of a quarry (pursuant to Sections 43C and 44A of the Finance Act 1996 (as amended) respectively).

It was held that the landfill restoration exemption was directed at work to land which, prior to the commencement of that work, had received disposals of waste as an operational licensed landfill and had not changed its use since then. Restoration constituted the final part of waste disposal operations at a licensed site which was required to restore the site to a use other than waste disposal. The disposal operations completed before 1970 were completed long before the site became a licensed landfill. Ebbcliff ’s disposal would not be carried out on completion of the waste disposal operations. The deposit of material beneath the capping layer in the manner envisaged by Ebbcliff was not restoration within Section 43C. The exemption was restricted to the final operation intended to restore the site.

The quarry refilling exemption was only available if it was a requirement of planning consent in respect of the land that the quarry or former quarry be wholly or partially refilled. Refilling was not a requirement of the 1995 consent because the site had been refilled before 1970. 

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.

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