Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, William Upton and Nicholas Ostrowski consider a graphic scenario of the impact of the sentencing guideline, a case dealing with liabilities surrounding a failure to control Japanese knotweed, and nuisance from barbecues.

Graphic illustration of impact of sentencing guideline

You are a Crown Court judge who is about to pass sentence in a case about the unauthorised discharge of sewage to a watercourse involving the following facts:

• The Defendant is a ‘very large organisation’ with a notional turnover of £400m+.
• There is significant culpability, possibly in the ‘reckless’ category.
• There is serious harm, possibly deemed as ‘category 2’.
• The offence involved spillage of raw sewage into a watercourse resulting in water quality levels “142 times” over an EU Directive for poor water quality.
• An alarm sounded at 02:24 notifying the organisation of the potential breach but the field manager did not alert the duty manager until 08:00 and no one was sent to survey the site until 10:30.
• As the judge you consider that the company’s response to the spillage was ‘inexcusable’ and that ‘One can only conclude that the attitude of those who dealt with this matter was one of extraordinary complacency on this occasion.’
• The Defendant has several previous convictions for similar offences.

Under the sentencing guideline this would suggest a starting point of £250,000 with a potentially significant increase to account for the fact that this was a ‘very large’ organisation.

In fact, the defendant was fined £40,000. How is that possible?

The answer, it appears, is not that a Six Pump Court barrister exercised their customary powerful advocacy in mitigation but that the offence took place in the Moyola River in Northern Ireland where the sentencing guideline does not apply.

Although no official transcript of the judge’s sentencing remarks has been obtained, press reports of the proceedings here, here and here suggest that the Defendant, Northern Ireland Water stated that the valve in question was not closed due to an error of judgment and that the company (the state owned water company) has now conducted a number of remedial actions. While NI Water may have advanced powerful mitigation it is inconceivable that, when applying the sentencing guideline, a similar offence involving a similarly sized Defendant in England and Wales would have resulted in a fine of anything like £40,000. Will there be calls for an environmental sentencing guideline in Northern Ireland?

Knotweed: Court of Appeal unravels the issues (or ties itself in knots?)

In Network Rail Infrastructure Ltd. v Williams and Waistell [2018] EWCA Civ 1514 the Court of Appeal grappled with the question of what kinds of damage give rise to an actionable claim in the tort of private nuisance. To do the case justice would require a long discourse (no doubt already somewhere in course of preparation). A lesser one follows.

The case concerned two neighbouring properties which had been affected (to use a neutral word) by the presence of highly invasive Japanese knotweed on Network Rail’s adjacent land. In the light of an RICS paper, the potential dangers from knotweed invasion have become so well-known and highly-feared that lenders will not lend if it is within seven metres of a property offered as security, even after treatment of that property to eradicate its presence on-site.

The first instance judge held that both properties had been the subject of actual encroachment by knotweed but neither had suffered any physical damage and there was thus no actionable nuisance in that respect. Each was nevertheless permanently devalued in the market by the resulting stigma from the continuing presence of nearby knotweed, which was actionable. He awarded damages to each claimant representing the cost of eradication and a guarantee, general damages for loss of amenity prior to treatment and ‘blight’, and a further sum for residual diminution in value. He refused to grant an injunction requiring network Rail to eradicate the knotweed. Network Rail appealed. The Court of Appeal upheld the judge’s decision, but for different reasons.

The Master of the Rolls Sir Terence Etherton (with whom the other two judges agreed) took the opportunity to seek to restate the general principles of nuisance in a modern form. The fundamental principle is that nuisance is a tort against property not people. Sir Terence doubted whether it was correct to say that damage was always an essential ingredient of the tort and considered that at the least the concept of ‘damage’ in that context was a highly elastic and artificial one. He considered whether any relevant distinction was to be drawn between nuisance by interference with enjoyment/amenity and other types of nuisance (by encroachment or direct physical injury). It is well-established that in the case of the first type, no physical damage to the affected property need be shown.

Sir Terence concluded that it was no function of the law of nuisance to protect a property against fall in market value. Its purpose was to protect owners against loss of use and enjoyment. A property’s amenity did not include its financial value. To hold otherwise would result in nuisance being extended to claims for pure economic loss. Nevertheless, the circumstances gave rise to liability on the Leakey principle, sufficient damage (if any were necessary at all) being constituted by “the diminished ability of the claimants to use and enjoy the amenity of their properties”. This gives a wide meaning to the concept of ‘amenity’, the relevant loss being it seems the immediate need to do something about the actual encroachment.

The Court also made some interesting observations on the availability of injunctions in cases of apprehended nuisance to prevent imminent damage or damages in lieu, in circumstances where actual damage is absent. Sir Terence considered that “what matters is the probability and likely gravity of damage rather than simply its imminence”. Given the recent indication by the Supreme Court in Coventry v Lawrence that courts should be more ready to award damages in lieu, this may indeed be a route to reconciling the principles in a manner enabling recovery in similar cases, if the concept of damages in lieu can be extended to reflect residual diminution in value due to stigma.

This decision really does rather raise more questions than it answers and those can only be authoritatively explored and answered by the Supreme Court. Such exploration might usefully include the relationship between ‘damage’ as a constituent of a cause of action in nuisance and ‘remoteness of damage’ as a principle for determining the measure of damages (including the exclusion of pure economic loss) once a cause of action is established. There is in such cases (as in other areas of tort) something of a Gordian knot to be cut in order to unravel the concepts of duty and recoverable losses for breach of duty.

Nuisance from barbecues

Barbecues can be a fun way to attempt some outdoor cooking. We can recommend our Australian-trained, in-house barbecue expert, Mark Beard, for some top cooking tips. But we still have to hope our guests are patient, and that our neighbours forgive the smoke and smells. The recent settlement in the statutory nuisance claim brought by Highbury Fields residents in Highbury Magistrates’ Court over barbecuing in the Fields illustrates what can happen when it gets out of hand. [see news item] The adverse impact on air quality was measured, but remained a contentious point. The nuisance issue was much clearer. The allegation was that it unreasonably interfered with the comfort and convenience of the neighbouring houses. So, if you do get tempted, please enjoy some responsible barbecuing in this heatwave.

Friday 13th July – Regulatory Law Conference 2018 (Birmingham)

Six Pump Court is very pleased to be hosting its Regulatory Law Conference 2018 which will take place in Birmingham on 13th July. The event will cover a variety of topics providing essential updates on specialist areas, informative discussion on topical issues and practical tips for those acting in regulatory matters. Click here for more information and to book last few remaining places.

To keep up-to-date click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk