Environmental case law update February Essex Street Seminar. Caroline Allen

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1 Environmental case law update February Essex Street Seminar Caroline Allen Environmental Crime 1. One of the most important domestic cases of the past year is R (Thames Water Utilities Ltd) v Bromley Magistrates Court and The Environment Agency [2013] EWHC 472 (Admin), in which a two-judge Administrative Court (Gross LJ and Singh J) dismissed Thames Water s application for judicial review of the decision of Bromley Magistrates Court that unintentional escapes of sewage from Thames Water s system in 2003 amounted to deposits for the purposes of s.33(1)(a) of the EPA 1990, and that a conviction under the first limb of the provision did not depend upon a deliberate act because the provision imposed strict liability. 2. Whilst the relevant sections will be familiar, it is worth remembering that sections 33 and 34 of the EPA provide, so far as is material, that: 33(1) a person shall not (a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence; (7) It shall be a defence for a person charged with an offence under this section to prove (a) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence

2 34(1) it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in all the circumstances (a) to prevent any contravention by any person of section 33 above;. (b) to prevent the escape of the waste from his control or that of any other person 3. In his leading judgment, Gross LJ gave careful consideration to the meaning of the word deposit at s.33(1)(a), finding that it was to be given its ordinary meaning and agreeing with the District Judge below that this was put, place(d) or set down ; he then went on to find that a construction by reference to ordinary usage was appropriate. Accordingly the test for the court was whether an unintended escape falls within a reasonable range of meanings for deposit ; it had no real difficulty in finding that it did, and that this conclusion was supported by the statutory scheme as a whole. 4. The court s judgment was based upon two crucial points: (i) the striking contrast between the first limb of s.33(1)(a), which contains no requirement of knowledge, and the second and third limbs, which do; and (ii) the existence of the statutory defence of due diligence pursuant to s.33(7), which would ameliorate the potential harshness of an offence of strict liability that required no mens rea.

3 5. Thames Water contended that the existence of s.34 was proof that s.33 applied only to intentional deposits, or the Environment Agency would be free to prefer the more serious s.33 offence and cast the burden of proof on the defendant, but this was rejected by the court on the facts: s. 34 had no application as the sewage was not controlled waste until it had escaped the system: up to that point it was within the provisions of the Urban Waste Water Directive (91/271/EEC) and so outside the Waste Directive (75/442/EEC) as already covered by other legislation (a point which had already taken the case to both the CJEU and the Court of Appeal); that being so, s.34 had no scope to bite. 6. Whilst the court s rejection of Thames Water s s.34 argument appears sound on the facts of the case, its conclusion that a deposit for the purposes of s.33(1)(a) can include an unintentional escape, and that this conclusion is of general application and not limited to escapes from a sewerage system governed by its own particular statutory regime, may cause more potential difficulties. Thames Water posited the example of a shopper who trips, falls and in so doing deposits the contents of their shopping bag, but this was dismissed by the court as of little force, as the s.33(7) defence would be available in such circumstances and the courts would ensure that unwarranted cases such as that would not be pursued. It seems likely that the ruling will generate further interesting case law where matters are less clear cut, however. 7. The Court of Appeal was also obliged to give careful consideration to the meaning of the word deposit 1985 in R (Frampton) [2012] EWCA (Crim) 2697, albeit in the different context of an appeal against conviction and sentence in relation to the deposit of substances or articles within UK waters without a licence contrary to sections 5(a), 9(1)(a) and 21(6) of the Food and Environment Protection Act The Appellant had been filmed by the MMO carrying out activities that consisted, essentially, of collecting sediment from the seabed using a digger with a bucket, lifting it, rotating it through 90 degrees and depositing it a few yards away without the bucket breaking the surface of the water. It had denied at trial that this constituted depositing within the meaning of the sections, but the judge had disagreed, holding that whilst there was an extensive interpretation section in the Act, the word deposit was not defined and should therefore be given its ordinary English meaning. The Appellant argued that the judge had failed properly to direct the jury with regard to this issue which was, it contended, the central issue of the case. It was submitted that the question was whether there had been a deposit of silt over and above ordinary maintenance of the harbour (to

4 which a statutory exemption would apply): the filmed activity was capable of amounting to simple dredging of the harbour and no more than maintenance. At most, the activity amounted to redistribution of the silt, which did not in itself amount to deposit. 8. The Court of Appeal was not persuaded. In finding that the judge s direction to the jury had been clear and careful overall, Lady Justice Hallett observed that he had directed them expressly that the prosecution must prove that a deposit occurred, that he had defined deposit in the only way he could, as an ordinary English word, and that he had highlighted it as an important issue between the appellant and the Crown. Criticisms that the judge had not directed the jury specifically about redistribution or maintenance of the harbour were misplaced: the case was never truly about either, but was about the movement and deposit of silt during the construction of a new marina. Accordingly the judge had directed the jury appropriately on how they should approach the issue of deposit. 9. In Oxfordshire County Council v Wyatt Brothers (Oxford) Ltd & Others [2012] All ER (d) 75 (Dec), justice appears finally to have caught up with the Wyatt brothers, the Court of Appeal sending out a strong if belated message that planning legislation must be complied with and that those who bring adverse consequences upon themselves must expect to pay the penalty. In dismissing the brothers appeals against their committal and ordering that they must serve prison sentences of four and six months for contempt by failure to remove unlawful deposits of waste from their land in breach of an injunction made in November 2005, it is to be hoped that the court will have brought to an end an extremely long legal saga. Though, given that at the time of the appeal, the appellants had done very little even to begin to comply with the order against them, the matter may rumble on for some time to come. Statutory nuisance 10. In Thomas v Merthyr Tydfil Car Auction Ltd [2013] EWCA Civ 815 the Court of Appeal dismissed an appeal against a decision to award damages in relation to noise nuisance. Whilst much of the ruling turns on the facts of the case, two more general points are worthy of note:

5 (i) The Court of Appeal confirmed that the trial judge had taken the wrong approach to the evidence of several witnesses whose statements had been relied upon by the Appellant but who, by agreement, were not called at trial. The judge had attached little weight to their statements as they were untested by cross-examination. Lloyd Jones LJ found that this was incorrect as a matter of law: the contents of the witness statements had been inevidence by agreement, and that, in itself, was not a reason for attaching less weight to their contents than might be the case if each witness had been called and cross-examined; the situation was distinguishable for that where a Civil Evidence Act notice had been served in respect of a statement and a judge might therefore decide to attach less weight to it because the witness had not been crossexamined. (ii) In attaching considerable weight to the fact that there had been a considerable reduction in the level of noise at the Appellant s site after proceedings had commenced, and that it had therefore been possible for the Appellant to carry out its business on the land in accordance with the planning permission without the intrusion on the amenity that the Respondents had suffered, the judge had not erred in his reasoning. 10. North Lincolnshire CC v Act Fast North Lincolnshire (CIC) (2013) EWHC 2890 (Admin) is one of the latest in a long line of cases which raise questions about the content of abatement notices served under s.80(1) of the Environmental Protection Act Behren HHJ found that the notice had been issued under s.80(1)(a) and confirmed that it is open to a local authority to serve a notice simply requiring abatement of the nuisance under that subsection without further specification of the steps to be taken, citing the leading Court of Appeal authority Falmouth and Truro Port Authority v Southwest Water [2001] QB 445. Whilst it may be true that the effect of the notice is that if the owner cannot take the necessary steps to do so he will have to close down, a local authority is not bound to specify the steps to be taken if it is careful and issues a notice under s.80(1)(a) (rather than s.80(1)(b), which requires the execution of works). 11. In Dennis Rye v Bolsover D.C. [2013] EWHC 1041 (Admin) the Administrative Court considered the evidence required to prove a breach of Abatement Notices through nuisance

6 from burning waste. Whilst the case is not, on its facts, terribly significant, it is of assistance to those seeking to access the benefits of the statutory nuisance regime and provides a useful guide to the nature and extent of the evidence required by those attempting to address localised environmental problems through it. 12. The facts of the case, in brief, were that the appellant had been convicted in the Crown Court on two charges for breaches of an abatement notice by the lighting of fires, creating smoke and causing a nuisance. At trial evidence was given by the environmental health officer and a fire officer who had attended after a call by a member of the public and photographs were exhibited. Evidence from a complainant was admitted but the complainant was not called to give oral evidence. The appellant appealed by way of case stated on the grounds that, on the evidence before the court, there was no evidence which could justify a conclusion that there had been a nuisance arising from the burning of the waste or of the bonfire on the two respective occasions in question. Considerable reliance was placed on the fact that there was no evidence that anyone complained that they were adversely affected by the smoke. 13. In dismissing the appeal, Collins J found that the evidence of the officers was not mere speculation, and that their experience and expertise was such that they were entitled to draw the conclusions that they had drawn in evidence that the smoke was such as would cause a nuisance. Having regard to the clear evidence, supported by photographs, of the waste that was burned, coupled with the evidence of the officers and the fact that there had been complaints from the surrounding neighbours about the effect of such smoke from 2000 onwards, it had been properly open to the court to be satisfied that noxious smoke would have been emitted to such an extent as would have created a nuisance to adjoining occupiers. 14. Some reassurance for unsuccessful claimants in statutory nuisance proceedings was provided by the Divisional Court in Bentley-Thomas v Winkfield Parish Council [2013] EWHC 356 (Admin), in which an order that the claimant pay the respondent local authority s costs of 18,000 following the dismissal of an information she had brought alleging statutory noise nuisance under s.82(1) of the EPA 1990 was quashed. In allowing the appellant s appeal, by way of case stated, Fulford J held that the core issue was whether the prosecution ever stood any realistic chance of success and whether, in that sense, it was a reasonable and proper prosecution. On the facts, the prosecution in the index matter could not be described as

7 having been, at the outset and in the way that it was pursued, so self-evidently lacking in merit that the case was without any realistic prospect of success and should not have been brought, and the District Judge s decision to award costs against the appellant had therefore been unreasonable in the Wednesbury sense. Aspects of Common Law 9. In Willis v Derwentside District Council [2013] EWHC 738 the Claimants brought a claim in damages for nuisance, negligence and under the rule in Rylands v Fletcher arising from the escape of CO² ( stythe gas ) from land owned by the Defendant District Council at a former colliery. The Claimants had had to be evacuated from their home due to high levels of gas and claimed that their health, and that of the animals on their smallholding, had been adversely affected. Most seriously, it was alleged that the Defendant s failure to provide a completion certificate after remedial works had been carried out had rendered the Claimant s property unsaleable and unmortgageable. 10. The Rylands v Fletcher point was dealt with swiftly by Briggs J at paragraphs 45 and 46 of his judgment: 45. The doctrine established by the House of Lords in Rylands v Fletcher (1866) LR 1 Ex 265 (1886); LR 3 HL 330 imposes a form of strict liability upon a person who for his own purposes brings on to his land, collects and keeps there anything likely to do mischief if it escapes. But it has long been held that mining activity is a natural user of land to which the doctrine does not apply: see Clark Lindsell on Tortes (20th Ed.) at paragraph 20-52, and Wilson v Wardell (1876) 2 App Cas 95. Nor is stythe gas something brought on to the land in the relevant sense. It is something released by the natural reaction of oxygen with carboniferous strata. 46. The result is that, as Mr Smith for the Council submitted, the doctrine of Rylands v Fletcher has no application in the present case.

8 11. As regards nuisance, however, it was held that the Council s liability arose from a failure to take reasonable steps to abate the nuisance once it knew or ought to have known about it; the Claimants had succeeded in establishing liability on that basis. It was therefore formally recorded that, pending the provision of a certificate of satisfactory completion of the works and the giving of an appropriate undertaking as to their monitoring and maintenance, reasonable steps had not yet been completed by the Defendant to abate the nuisance discovered 7 years earlier in April In Dodson v Environment Agency [2013] EWHC 396 (QB) the High Court clarified that the Environment Agency s conservation powers / duties under the Environment Act 1995 including the power to give advice and / or assistance pursuant to s.37(3) gave rise to no general duty of care to private owners. Citing the classic authorities on duty of care in the context of statutory powers / duties, including Stovin v Wise, Gorringe v Calderdale and the general Caparo v Dickman test, the Court noted that the imposition of a duty of care would to private owners would be liable to conflict with the Environment Agency s nature conservation duties. In any event, on the evidence, the Claimant had failed to establish any negligent act on the part of the EA, nor a relationship of proximity between himself and the EA sufficient to give rise to a common law duty of care, or a causative link between his loss and the EA s actions. 13. An extremely lengthy judgment of Arnold J in Couper v (1) Albion Properties Ltd (2) Port of London Authority [2013] EWHC 2993 (Ch), a case primarily concerned with adverse possession and the existence of ancient mooring rights in relation to a group of barges, boats and pontoons moored on the River Thames at Battersea, also contains a useful discussion on private and public nuisance in this specific context at paragraphs 525 to 545. (The First Defendant s counterclaim succeeded under both heads.) Procedure 12. Finally, two cases concerning matters of legal procedure and evidence.

9 13. The first, R (Great Yarmouth Port Company Limited) v Marine Management Organisation [2013] EWHC 3052 (Admin) demonstrates the High Court s determination to promote use of the tribunal system and to stress the consequent non-availability of judicial review. 14. The applicant challenged a decision by the MMO to vary a marine licence in relation to the construction of an outer harbour in order to monitor the effects of the harbour works. The Port Company could have appealed against the MMO s decision to the First Tier Tribunal but instead sought to bring judicial review proceedings. The Court refused permission on the basis that the applicant should have availed itself of the statutory appeal, Higginbottom J stating that: if the relevant administrative decision is subject to a sensibly adequate appeal system, there is no role for judicial review at all. In the case of tribunals set up under the Tribunals, Court and Enforcement Act 2007, there is of course a sophisticated and comprehensive system of appeals designed and approved by Parliament The intention of Parliament that, usually, where a route of appeal is available through a first-tier and second tier-tribunal, and thence to the Court of Appeal, that appeal route should be to the exclusion of judicial review is clear. 15. Finally Proton Energy Group SA v Orlen Lietuva [2013] EWHC 2872 provides a reminder of the need to select expert witnesses with the utmost of care. Judge Mackie QC was unsparing in his criticisms of the experts put forward by both parties, commenting that whilst Expert X, for the Defendant, was a good witness in that he was honest, highly qualified in his field in general and detached and straightforward in his answers, he did not have relevant experience and what he had to say of relevance was within the experience of most Commercial judges. The independence of Expert B on behalf of the Claimant, meanwhile, was questioned, given that he had long-standing commercial connections with the firm of solicitors by whom he was instructed which extended to the involvement of one of the partners in that firm giving workshops for Expert B s company, for which he had been paid. The Judge noted that This was not the worst of failures to disclose an interest But this connection, which included money, was a closer one than usual and should have led [the firm] to choose another expert or at least make full disclosure of the link. He concluded that he drew no relevant conclusions from the expert evidence.

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