New Forest SBC: environmental law update 22 March 2006 Nicholas Rock Partner, Blake Lapthorn Linnell Agenda 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) Negligence 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 another – Even if use utmost care (stricter than negligence) 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 damage – 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) continued… – 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 1990) 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 costs 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 1990) Does not create a criminal offence of causing contamination 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 change 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 conditions – 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 consultation – 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 2006 – 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 WEEE – 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 2005 – 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: firstname.lastname@example.org 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: email@example.com 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: firstname.lastname@example.org In addition to defence work, Sarah also has conduct of prosecutions for several regulatory authorities.
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