Legislation by suchenfz


									    New Forest SBC:
environmental law update
           22 March 2006
          Nicholas Rock
  Partner, Blake Lapthorn Linnell

 Introduction to environmental law
   – Civil liability
   – Criminal liability
   – Administrative liability
 Recent developments
1. Civil liabilities

 Three key environmental torts
   – Negligence
   – Nuisance
       Private
       Public
   – The rule in the case of Rylands v Fletcher
 Generally must bring claim within 6 years from date
  of damage (subject to latent damage and continuing
  damage exceptions)

 Elements of Negligence
     – Duty of care
     – Breach of that duty (failure to act as a
       reasonable person would in the circumstances)
     – Causing foreseeable damage
   Remedies
     – Damages, including for personal injury
     – Not injunctions
   No liability once part with possession of land to
    purchaser (subject to contract and Defective
    Premises Act 1972, Section 3)
Private Nuisance

 Elements of Private Nuisance
     – Unlawful act causing foreseeable and material
        damage or other interference with property of
     – Even if use utmost care (stricter than
   Remedies (provided have interest in land)
     – Injunction
     – Damages, including for consequential financial
        loss and for annoyance and discomfort, but not
        for personal injury
   Unlike negligence, can still be liable after leave or
    sell land
The rule in Rylands v Fletcher

 Elements of rule
     – Bringing something onto land
     – For the defendant’s purposes
     – Which then escapes causing foreseeable
     – Whether or not took reasonable care (again,
       stricter than negligence in this respect)
   Remedies
     – Damages to property or goods, but not for
       personal injury
     – Injunction
   Law not clear on whether can be liable if escape
    occurs after ceased to occupy land
2. Criminal liabilities

 Water pollution offences
    – Section 85 of the Water Resources Act
      1991 (WRA 1991)
   Waste offences
    – Section 33 of the Environmental Protection
      Act 1990 (EPA 1990)
    – Section 34 (“duty of care”)
Water Pollution (Section 85, WRA 1991)

 Offence to:
     – cause or knowingly permit
     – any poisonous, noxious or polluting matter or
       any solid waste
     – to enter any controlled waters
   Defence to do so:
     – under and in accordance with a valid permit or
       consent; or
     – in an emergency
Waste offences (Sections 33/34, EPA 1990)

 Offence under Section 33 to:
   – Deposit controlled waste, or knowingly cause or
     knowingly permit it to be deposited, in or on any
     land unless in accordance with a valid waste
     management licence; or
   – Treat, keep or dispose of controlled waste, or
     knowingly cause or knowingly permit it to be
     treated, kept or disposed of, in or on any land or
     by means of any mobile plant unless in
     accordance with a valid waste management
     licence; or
   – Treat, keep or dispose of controlled waste in a
     manner likely to cause pollution of the
     environment or harm to human health; or
Waste offences (Sections 33/34, EPA 1990)
     – To contravene any condition of a waste
       management licence
   Defences
     – Took all reasonable precautions and exercised
       all due diligence to avoid the offence; or
     – Done in an emergency
   Offence under Section 34 “duty of care” to fail to
    take all reasonable steps to, for example:
     – Prevent contraventions of Section 33
     – Ensure waste is only transferred to authorised
       contractors and produce adequate waste
       transfer notes
3. Administrative liabilities

 Statutory nuisance
     – Section 79 of the EPA 1990
   Water pollution
     – Sections 161 and 161A of the WRA 1991
   Contaminated Land
     – Part IIA of the EPA 1990 and statutory guidance
       in DETR Circular 02/2000
   Producer Responsibility legislation such as
     – Producer Responsibility Obligations (Packaging
       Waste) Regulations 1997 (as amended)
     – WEEE and RoHS Directives
Statutory Nuisance (Section 79 of the EPA
 Section 79 lists various “statutory nuisances”
 Section 80 requires local authorities to:
     – inspect their areas to detect nuisances and
       investigate complaints; and
     – Serve abatement notices where satisfied a
       nuisance exists or is likely to occur/recur
   Offence to fail to comply with abatement notice
    unless show you have already used “best
    practicable means” to avoid nuisance
     – LA can take abatement measures and recover
   Contaminated land is not a statutory nuisance
Water pollution works notices (Section
161/161A, WRA 1991)
 Sections 161 and 161A of the WRA 1991
    complement Section 85 (above) and allow the
    Agency to:
     – Carry out investigations and/or works to prevent
       or remediate the effects of water pollution
       offences and recover their reasonable costs of
       doing so; or
     – Serve a “works notice” on any causer or
       knowing permitter of the pollution (whether or
       not they now own or occupy the site) requiring
       them to carry out specified works to prevent or
       remediate the effects of it
   Section 161/161A notices will not be used where
    water pollution is being caused by contaminated
    land (see next slide instead)
Contaminated Land (Part IIA of the EPA
 Does not create a criminal offence of causing
   Instead creates regime whereby local authorities
    have duty to inspect land in their area and, if it is
    “contaminated”, designate it as such and serve
    notice on “appropriate persons” requiring them to
    remediate that land to “suitable for use” state.
   Land is “contaminated” if:
     – Causing/likely to cause significant harm to
        persons, their property or the environment or
        significant pollution of controlled waters
   Applies to historic as well as new pollution
4. Permitting laws

 Part I of the EPA 1990 (Integrated Pollution
    Control and Air Pollution Control)
   Part II of the EPA 1990 (Sections 35-44)
    – Waste Management Licensing Regulations
      1994 (as amended)
 Pollution Prevention and Control Act 1999
    – Pollution Prevention and Control (England
      and Wales) Regs 2000
Part II: Legislation Update
New Building Regulations from April 2006
   Revised Part L (Conservation of Fuel and Power) [and
    Part F (Ventilation)] 2006 Regulations
     – Approved on 9 March 2006
     – Come into effect from 6 April 2006
   Commencement date brought forward from Spring 2008
    to increase the Regs’ contribution to tackling climate
   Raise energy efficiency of new buildings by 20% for
    dwellings and up to 27% for other buildings from April
    (around 40% since 2002 when Part L last updated) and
    improve compliance by introducing pressure testing
   Any building work must comply from April 2006 unless
    able to take advantage of detailed transitional provisions
New Packaging Waste regime

 New single codified set of packaging regulations
    (SI: 2005/3468)
     – 1997 regulations and all subsequent
        amendments repealed and replaced
   Significant changes
     – Revised recovery and recycling targets for 2006
        and 2008
     – New optional allocation method for smaller
        businesses (£2-5m)
New Packaging Waste regime: 2

 Significant changes continued…
   – New obligations:
          Lessors – new 85% “service provision” on first trip
           leased packaging
          Franchisors and licensors
          Imported transit packaging
   – Operational plans to Defra as well as EA but
     now only producers of 500 tonnes p.a. need
     produce one
   – Removal of “reasonable steps” shield
Water Framework Directive (2000/60/EC)

 In force - December 2000
 Transposed - January 2004
 Phase in over next 9 years at huge cost (£billions)
 Aim - most waters to achieve “good ecological
  and chemical status” by 2015
   – will only permit slight deviation as a result of human
     activities from theoretical pristine biological
   – baseline likely to be very controversial
   – 80-90% failure rate predicted for UK rivers
Water Framework Directive (2)

 Method - “integrated river basin management”
   – holistic look at land use generally across
     catchment area
   – analyse and weigh environmental, economic
     and social issues
   – focus on reduction of discharges at source
   – reduced abstraction rights/tightening of
     discharge consents likely
   – “full cost recovery” pricing by 2010
Water Framework Directive (3)
   Timetable
    – December 2006
        EA proposals for preparation of river basin
           management plans (RBMPs)
          EQSs for priority substances to be set
    – December 2007 - publication of significant water
      management issues for each RBD
    – December 2008 - draft RBMPs first published for
    – December 2009 - RBMPs finalised
    – 2012 - RBMPs fully operational
    – 2015 - Objectives of first RBMPs to be met
Environmental Permitting Programme

 New proposal to combine the IPPC and Waste
    Management Licensing regimes
   Consultation launched by DEFRA on 20 February
     – Part of “Better regulation” initiative
     – Will affect WML regime more than PPC
     – “Simplify and standardise mechanics”
     – “No change to what is regulated or to standards
        to be met”
   Consultation ends 15 May 2006
   Draft legislation by Autumn 2006
   In force from late 2007/early 2008
WEEE and RoHS update
     – Was due to start in June 2006
     – Further unspecified delay announced on 15
       December 2005
     – New consultation in Spring 2006
     – Probably not now in force until January 2007 at
       the earliest
   RoHS
     – No delay
     – Regulations and Guidance published in late
     – Starts 1 July 2006
Environmental Reporting update
 OFR: a Whitehall farce
   – April 2005
          Regulations Introduced
             – Product of 6 years’ consultation
             – First reports due April 2006
   – May 2005
          ASB official guidance published
             – Product of 7 years’ work
   – November 2005
          Summarily scrapped by Mr Brown in
Environmental Reporting: 2

  – January 2006
        Judicial review launched by FoE
        OFR regulations formally repealed
        ASB guidelines withdrawn and replaced with
         voluntary guidance
        Government urges businesses to report
         voluntarily despite repeal!
  – February 2006
        Further government U-turn!
        FoE challenge settled and costs paid
        New consultation on OFR
Key contacts
                               Nicholas Rock, partner
                               Prior to joining the firm in 2004, Nick was a senior
                               associate in the Environment, Planning and
                               Regulatory group of Freshfields Bruckhaus Deringer
                               where he qualified as a solicitor in 1994. Before that
                               he studied law at Trinity Hall, Cambridge graduating
                               in 1991 with 1st Class honours.
                               Nick handles a heavy workload of transactional and
                               advisory environmental matters across a wide range
                               of business sectors. He also provides stand-alone
                               advice to clients on a wide range of environmental
                               matters, such as contaminated land, water pollution,
T: 01489 555186                waste management, environmental licensing and
M: 07740 500058                permitting issues, producer responsibility obligations
E: nicholas.rock@bllaw.co.uk   and environmental insurance.
                               Nicholas Rock exudes "star quality," say clients. He is
                               endorsed in impressive quarters since joining from
                               Freshfields Bruckhaus Deringer, and clients find him
                               "an invaluable sounding board ." (Chambers’ Guide to
                               the Legal Profession 2005-6)
                               John Mitchell, partner
                               John qualified in 1979 and has spent his entire
                               professional career involved working in Magistrates and
                               Crown Courts. Since 1992 he has focussed on advising,
                               assisting and representing businesses in those areas of
                               commercial life where the criminal law is used to regulate
                               business activity.
                               His work regularly involves him in negotiations with
                               regulatory authorities and in conducting the defence of
                               prosecutions regarding health and safety, trading
                               standards, product liability, water pollution, waste, food
T: 01489 555008                safety, noise, smell, environmental health and road
M: 07899 065240                transport. John is a keen advocate and, when clients
E: john.mitchell@bllaw.co.uk   appear in court or before an enquiry, prefers to represent
                               them himself.
                               He is recognised by Chambers as a leading defence
                               solicitor in the fields of both environmental law and fraud.
                               Sarah Wheadon, senior solicitor
                               Sarah qualified in 1993 and joined the Personal
                               Injury department of Blake Lapthorn Linnell in 1996.
                               Sarah gained experience in all areas of personal
                               injury work, including employer’s liability (covering
                               both health and safety and environmental issues).
                               In May 2002, Sarah qualified as a solicitor-advocate,
                               and subsequently joined the Regulatory team.
                               Sarah now advises and defends businesses and
                               individuals on a wide range of regulatory matters,
T: 01489 555045                including health and safety, social care services,
                               trading standards and the environment. She also
M: 07917 203927
                               represents clients at Inquests.
E: sarah.wheadon@bllaw.co.uk
                               In addition to defence work, Sarah also has conduct
                               of prosecutions for several regulatory authorities.

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