Environmental Law for Facilities Managers. Mr James Pong Mr Francis Yeung

Environmental Law for Facilities Managers Mr James Pong Mr Francis Yeung

Environmental law civil or criminal in nature Nuisance is always a balancing exercise One man s meat may be another man s poison Give and take Live and let live Public nuisance or private nuisance?

Public nuisance Public nuisance is a crime Every people is guilty of an offence at common law, known as public nuisance, who does an act not warranted by law, or omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise of enjoyment of rights commons to all Her Majesty s subject. (Archbold)

Differences between Civil and Criminal Law Civil Criminal Between 2 individuals Between the State and an individual Damages (compensation) - $$ and/or injunction Fines (penalty) and/or imprisonment and criminal record Burden of proof on the plaintiff Burden of proof on the Prosecution Standard of proof is on a balance of probabilities Standard of proof is beyond reasonable doubts Ingredients : tort of nuisance Ingredients of the offence : mens rea and actus reus (actus non facit reum nisi mens sit reus) Part of the legal cost might be borne by the complainant (the aggrieved person) No legal cost for the complainant

Environmental Legislation in Hong Kong (enforced by EPD) Air Pollution Control Ordinance, Cap. 311 Noise Control Ordinance, Cap. 400 Water Pollution Control Ordinance, Cap. 358 Waste Disposal Ordinance, Cap. 354 Environmental Impact Assessment Ordinance, Cap. 499 Dumping at Sea Ordinance, Cap. 466 Ozone Layer Protection Ordinance, Cap. 403 Hazardous Chemicals Control Ordinance, Cap. 595 Product Eco-responsibility Ordinance, Cap. 603

Other Environmental Legislation in Hong Kong Merchant Shipping (Prevention and Control of Pollution) Ordinance, Cap. 413 Oil Pollution (Land Use and Requisition) Ordinance, Cap. 247 Protection of Harbour Ordinance, Cap. 531 Forests and Countryside Ordinance, Cap.96 Marine Parks Ordinance, Cap. 476

Strict Liability Gammon (HK) Ltd & Others v AG (a) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (b) The presumption is particularly strong where the offence is truly criminal in character; (c) The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (d) The only situation in which the presumption can be displace is where the statute is concerned with an issue of social concern. Public safety is such an issue; (e) Even there a statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

Example of Strict Liability Section 10 of the Water Pollution Control Ordinance Cap 358: it shall not be necessary for the prosecution to prove that the acts or omissions in question were accompanied by any intention, knowledge or negligence on the part of the defendant as to any element of the offence. Regulation 17B of the Water Pollution Control (General) Regulations HKSAR v Sunley Engineering & Construction Co. Ltd. (2000), HCMA 1026/2000

How Strict is Strict Liability? R v Winson (1969) The person on whom a duty is thrown is responsible, whether he has delegated or whether he has acted through a servant A man cannot get out of the responsibilities which have been put on him by delegating those responsibilities to another. Mousell v London and North-Western (1917) The principal is liable if the act is in fact done by his servants

Liability of Main-Contractors (Property Management Company) Its liability is confirmed in HKSAR v Paul Y ITC (1998) : Section 4(2) of the Noise Control Ordinance - Noise from domestic premises and Public Places knowingly permits or suffers noise which is a source of annoyance to any person... section 6(1) of the Noise Control Ordinance - Noise from Construction Sites uses, or causes or permits to be used, any powered mechanical equipment...

Liability of Main-Contractors (Property Management Company) The activities under S.6 concerned public well-being and were closely associated with concerns of public health; people had a choice whether to participate in such activities; and such activities could be controlled by improvements in business methods. In these circumstances, there was no doubt that the legislation intended that proof of knowledge of the particular breaches was not necessary.

Liability of Main-Contractors (Property Management Company) (a) (b) The main-contractor has the same responsibility as if it has done the work itself and cannot escape liability by delegating work to others The main-contractor causes the work done by his sub-contractor.

Appeal against abatement notice civil or criminal in nature? Civil in nature Lies in the purview of various appeal boards Instead of lodging an appeal to the various appeal board, can the defendant wait to deal with his discontent with the abatement notice in the magistrate court when his case is being heard? HKSAR v The Incorporated Owners of No.10 Bonham Strand & Another (2004), HCMA 239/2004

Main Areas of Concern

Pollution Issues

Wastewater

Sources of Foulwater

Sources of Stormwater

Discharge Points

Common Malpractices

Impacts of Malpractices

Water Pollution Control Offences (s.9 Water Pollution Control Ordinance): Discharge other than domestic sewage into a communal foul sewer Discharge other than unpolluted water into a communal stormwater drain Discharge licence Contravention 1 st offence 2 nd offence continuing Without licence (s.9) With licence (s.17b) $200,000 $400,000 $10,000/day $200,000 + 6 months

Drainage System

Manhole Covers

Do s and Don ts

Good Practices Regular maintenance Keep proper record Use right manhole cover Label different drainage systems (color coding)

Refuse Collection Problems

Common Malpractice

Good Practices

Renovation Waste

Flytipping

Flytipping Control S.16A Waste Disposal Ordinance Offence: deposited waste in any place without lawful authority or excuse or permission of any owner or lawful occupier of the place Contravention: $200,000 + 6 months 1 st offence $500,000 + 6 months 2 nd offence $10,000/day if continuing

Reduce Waste

Construction Waste Charges

Control Measures Establish house rules Set up a registration system Remove waste immediately Designate an area for temporary storage Use wheeled trolley with lid

Waste Skip

Sources Separation

Waste Recycling

Classification of Noise Neighbourhood noise Construction noise Industrial or commercial premises

Neighbourhood Noise S.4 Noise Control Ordinance Offence: any person who between 11 pm and 7 am, or at any time on a general holiday makes any noise which is a source of annoyance to any person Contravention: $10,000

Neighbourhood Noise S.5 NCO Offence: any person who at any time plays any musical instrument; use any loud-speaker; plays any game; carries on a trade; operates any airconditioner; keeps any animal or bird, the noise of which is a source of annoyance to any person Contravention: $10,000

Management Give advice or warning as appropriate to stop the noise at first instance Seek help from the police if the problem is unresolved

Renovation Noise

Restricted Hours

Construction Noise Control S.6 NCO Use powered mechanical equipment eg electric drill Carry out prescribed construction work: formwork, scaffolding; handling of rubble, wooden boards, steel bars, wood; hammering Construction Noise Permit Contravention: $100,000 1 st offence $200,000 2 nd offence $20,000/day if continuing

Control Measures Establish house rules Set up a registration system to control entry and working hours of workers Regular inspection of the works Work in mutually acceptable hours Post notices to inform the affected persons in advance Use silent equipment

Industrial or Commercial Noise

Enforcement of Control Noise Assessment Noise Abatement Notice (s.13 NCO) Compliance Check Non-compliance: $100,000 1 st offence $200,000 2 nd offence $20,000/day if continuing

Ventilation System

Pump Room

Renovation Emissions

Air Pollution Abatement Notice S.10 APCO Emission of air pollutants Require the recipient to cease, reduce or abate emission Non-compliance: $100,000 1 st offence $200,000 + 6 months 2 nd offence $20,000/day if continuing

Construction Dust Regulation Construction works to be carried out in accordance with control requirements specified in the Regulation Notifiable work: demolition or construction of building Regulatory work: renovation on external wall or roof; road opening or resurfacing; slope stabilization; handling of dusty materials; drilling, cutting or polishing Contravention 1 st Offence 2 nd Offence Continuing Notifiable Work $50,000 $100,000 + 3 months $10,000/day Regulatory Work $25,000 $50,000 $5,000/day

Odour Control Measures

Dust Preventive Measures

Restaurant Emissions Cooking fume Dark smoke from chimney

Installation Regulation Approval required if consumed > 25 L/hr liquid fuel eg diesel 35 kg/hr solid fuel eg coal, charcoal, wood 1,150 MJ/hr gaseous fuel Contravension: $50,000 + $500/day if continuing

Statutory Notice S.30 APCO Require the recipient to modify, replace, clean or repair the chimney or relevant plant; to prohibit the use of such plant; to install control equipment Non-compliance: $100,000 1 st offence $200,000 + 6 months 2 nd offence $20,000/day if continuing

Smoke Regulation Offence: dark smoke emitted from chimney for more than 6 minutes in any period of 4 hours or for more than 3 minutes continuously at any one time Penalty: $20,000 + $100 per quarter if continuing

Cooking Fume Control Install and maintain hydrovent, air washers, electrostatic precipitators, activated carbon filters Locate the emission points away from the affected persons Reduce cooking emissions

Hydrovent

Air Washer

Chimney

Dark Smoke Control Regular repair and maintenance of furnaces Use low sulphur fuel, town gas or electricity

Generator

Fuel Restriction Regulation Amended in October 2008 Use liquid fuel with sulphur content < 0.005% by weight Maintain good fuel purchasing records EPD officers to collect fuel samples during inspection

Thank You