Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Nicholas Ostrowski consider an Environment Agency prosecution involving confiscation orders of over £250,000, chemical regulation in the event of a no-deal Brexit and a recent case demonstrating that actions in statutory nuisance need not have an interest in land.

Environment Agency obtains confiscation orders in excess of £250,000

On 9 October at Sheffield Crown Court, Andrew Green and Dean Ryder were given suspended prison sentences and made the subject of hefty confiscation orders.

The two men ran Grantscope Ltd.  The company went into liquidation in September 2012 after it failed to comply with a Regulation 36 enforcement notice served by the Environment Agency in February of that year, following the illegal deposit of waste outside the company’s permitted Goodwin’s Yard site in Barnsley. The company’s environmental permit was subsequently revoked but despite this the defendants continued waste operations, including processing waste into trommel fines which were then bagged up to be sold as topsoil.

A waste pile of nearly 13,000 tonnes was accumulated before being abandoned.

The men were convicted of depositing waste outside the permitted area in December 2011, operating a regulated facility except under and in accordance with an environmental permit between November 2012 and May 2013 and failing to comply with the Regulation 36 notice.

The benefit figure was found to be £276,000 in equal share. Dean Ryder’s confiscation order was made in the sum of £138,002 because he had sufficient assets. Andrew Green’s assets were more limited, resulting in a slightly reduced confiscation order of £121,422.

The company and Dean Ryder had been prosecuted before, back in January 2012, for repeatedly burning waste in breach of its environmental permit. On that occasion, well in advance of the publication of the Definitive Guideline, the penalties imposed were significantly less – Grantscope Limited was fined £10,000 and Dean Ryder fined £5000 despite the deliberate nature of the offending and its financial motivation.

Issues surrounding the corporate veil are unlikely to have been relevant in this case due to the liquidation of the company. Apportionment is likely to have been relevant. In principal, there appears to be no reason why both men would not have been liable for the full amount, on the assumption that the Environment Agency were able to show that the benefit figure had been jointly obtained.

The Environment Agency’s press release can be found here

A previous press release relating to the 2012 prosecution can be found here

Chemical regulation in the event of a no-deal Brexit

On 12 October the Government published a number of additional guidance documents on what will happen in the event of a no-deal Brexit. One relates to the classifying, labelling and packaging of chemicals.

It is proposed that the UK would establish an independent standalone chemicals regime, effectively adopting current arrangements and basing the regime on the existing EU regulatory regime in order to provide continuity for businesses. Functions currently carried out by EU bodies, including the European Chemicals Agency, would be carried out by the Health and Safety Executive.

The particular changes that will result from Brexit that were highlighted include:

• Companies importing chemicals into the UK from EU countries would become “importers” and need to be sufficiently competent to comply with the duties and obligations on an importer;
• Submissions of notifications of classifications of chemicals would be made to the HSE;
• The HSE will have the ability to put in place new arrangements for mandatory classification and labelling;
• Companies will be required to use IT tools provided by the HSE;
• The UK will be free to make its own decisions about chemical hazard classification, including whether or not to align with decisions made in the EU.

Unsurprisingly, the guidance doesn’t engage with the cost concerns that inevitably result from having to have two systems in the UK and the EU, nor the fact that any company wishing to place products on the EU market will still have to comply with REACH, irrespective of the position taken by the UK on chemical hazard classification. There is no consideration of just how difficult it will be to ensure that the HSE is ready on Brexit day or the difficulties identified by the Environmental Audit Committee in transposing the chemicals regulation framework into UK law: see link here

The unfortunate impression given by the repeated publication of guidance notes lacking any level of proper detail is that a no-deal Brexit will inevitably result in a chaotic lurch into a regulatory crisis. Uncertainty continues to prevail. For the chemical industry, this is particularly unfortunate. Market access depends on regulatory compliance. Critically there is no reference in the guidance note to the status of current REACH registrations post Brexit and the resulting impact that Brexit may have on access to the EU market.

The guidance note can be found here

Actions in statutory nuisance need not have an interest in land

The expert readers of this blog will know that to bring a claim in common law nuisance a proprietary interest in the land is required (Hunter and Others v Canary Wharf Ltd and Hunter and Others v London Docklands Corporation [1997] AC 655), and such claims are normally brought by the freeholder or tenant of the land in question.

However, in Watkins v Aged Merchant Seamen’s Homes & Anor [2018] EWHC 2410 (Admin) the High Court considered what interest in land was required for an action in statutory nuisance to be brought.

In this case Ms Watkins occupied as a licensee an almshouse owned by the respondent charity. In January 2017 the charity, served notice to quit, expiring a month later in February 2017.

In September 2017, Ms W laid an information before the Magistrates Court complaining of a breach of section 79 Environmental Protection Act 1990 (‘EPA 1990’) complaining that the flat in question was in such a state as to be prejudicial to health or a nuisance due to pervasive damp in the building. She brought proceedings herself on the basis that she was a ‘person aggrieved’ under S.82 EPA 1990.

In November 2017, a possession order was made requiring Ms Watkins to give up possession on 1 December 2017. Ms Watkins however remained in occupation after 1 December 2017 unlawfully.

At the Magistrates hearing of the claim in statutory nuisance on 11 December 2017 (i.e. after the date when possession was required), the magistrates dismissed the case. Although the High Court subsequently criticised the magistrates’ reasoning, in essence, the magistrates did so because, as she had no right to be on the premises, Ms Watkins had no standing to bring a statutory nuisance claim as she was not a ‘person aggrieved’.

Ms Watkins appealed by way of case stated and the High Court (Kerr J) who said (at [41] – [42]):

In my judgment, the question is always one of fact and degree; but ordinarily, a person in actual occupation when the complaint is made would be aggrieved for the simple reason that she is occupying the premises and at risk of prejudice to her health if they are in a state that constitutes a statutory nuisance.

Having said that, a person in actual occupation might in an unusual case be treated as a mere busybody and not a person aggrieved. For example, the grievance might be found not to be genuine if a complaint were made for obviously tactical or abusive reasons; for example, in the full knowledge that the property in question is about to be demolished; or, possibly, where the occupier is shown to be about to leave the property permanently and has no genuine concern about its condition.

For a number of specific reasons in this case (principally because Ms Watkins was vigorously challenging the possession proceedings and there was a bona fide dispute between the parties), the High Court found that Ms Watkins was a ‘person aggrieved’ and was entitled to bring a claim in statutory nuisance against the almshouse charity.

In essence therefore the High Court has now confirmed that if someone is in actual occupation, even if that occupation is not lawful, then they may be able to bring a complaint in statutory nuisance. This could have significant consequences as it means that a group of environmentally-minded protesters who are unlawfully squatting near an environmentally-unfriendly premises could then lay a complaint under S.82 EPA 1990 (and may also persuade a local authority to serve an abatement notice under S.80 EPA 1990) which, if successful, could entirely prohibit works at the premises from taking place.

Please note there will be no update next week on 22nd October. The next update will be published on Monday 29th October.

We published September’s Environmental Law Podcast recently – a monthly round-up of the latest developments in environmental law.

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