Annual Environmental Law Case Review 2008 - 2009

STEPHEN TROMANS1

JUSTINE THORNTON2

1 stephen.tromans@39essex.com 2 justine.thornton@39essex.com

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Introduction This paper considers environmental case law during 2008 and covers the following topics: 1) Pollution Prevention and Control; 2) Nuisance; 3) Contaminated Land; 4) Waste; 5) Landfill tax; 6) Costs protection; 7) Environmental Information; 8) Damages/EC law; 9) Statutory Duties; 9) Water pollution; 10) Noise and Council tax PPC: Procedural requirements in PPC permitting process R. (Edwards) v Environment Agency (No.2) ([2008] UKHL 22) concerns the granting of a Pollution Prevention and Control ("PPC") permit by the Environment Agency under the PPC Regulations 2000 (S.I. 20000/1973) to burn shredded and chipped tyres as a partial substitute fuel in cement kilns. The grant was challenged by judicial review by a local resident living in the vicinity of the cement works in Rugby. Although the requisite notice and advertisement requirements were complied with prior to the grant of the PPC permit, the claimant argued that the Agency had failed unlawfully to disclose sufficient information on the impact of particulates emitted from the proposed installation. The Agency had two internal reports which considered the details of a desktop study of the effects of atmospheric emissions, especially from particulates, from the cement works. Neither of these was disclosed to the public as part of the statutory consultation exercise. The claimant argued that: the Agency had failed to assess the impact from the emission of particulates from the site; the switch to the tyres as a substitute fuel was capable of being a “project” which in relation to which the need for an Environmental Impact Assessment should have been considered; the permit application was so deficient in detail about the environmental impact of atmospheric emissions that it had not passed the threshold of being a proper application for a PPC permit; the failure to disclose the reports as part of the public consultation exercise had been unfair and rendered the procedure unlawful; and the Agency had misunderstood the internal reports on the effects of particulates emissions and that no reasonable authority would have issued the permit if it had understood the report properly. The judge, and the Court of Appeal, accepted the lack of

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full consultation point, but refused relief as a matter of discretion. The other points were rejected. The case has now been the subject of an appeal by the claimant to the House of Lords. He argued that (i) that the proposal amounted to a project falling either in Annex I or Annex II to Directive 85/337; (ii) the Environment Agency had been required by the IPPC Directive and by the PPC Regulations 2000 to undertake public consultation, as well as having a common law duty to do so as a body exercising public functions. The appeal was dismissed. On the EIA point, the majority of House of Lords found that the change in fuel could not amount to an Annex I project, as it was not the creation of something new, as opposed to a change in the way in the way the existing works were used.This finding meant that the proposal did not fall into Annex II of the EIA Directive. That said, the House of Lords acknowledged that they would have been inclined to refer the matter to the European Court of Justice as the matter was not acte clair, had they not gone on to decide that the information in fact provided complied with the provisions of the EIA Directive. Lords Brown and Mance thought that the change probably did amount to a “project” within the Directive, though agreed that there had been compliance with its terms even if the Directive was applicable. They thought that the term was rather more widely applicable that the majority would have it, and that the introduction of waste burning fell within the definition of “project”. Turning to the consultation point, the majority held that there been no breach of the IPPC Directive. The provision of information to the public was only required when there was a substantial change to an existing installation which may have “significant negative effects on human beings or the environment” under Art. 2.10(b) of the IPPC Directive. There was an unchallenged finding of fact by Lindsay J at first instance that the only change in operation proposed, namely the use of tyres, would not have such significant negative effect. The second argument concerned the PPC Regulations, the publicity requirements of which went further than the IPPC Directive because they applied to existing installations and required publication of formal supplementary inquiries and the information obtained in response to such inquiries. The majority held that there was no reason to imply a further requirement into the Regulations which excluded informal communication between an applicant and the Agency. It would be extremely inhibiting if the Agency ran the risk that its decision could be vitiated because an applicant was held to have communicated information that ought to have been the subject of a formal inquiry. Lords Mance and Brown disagreed on this last point. The last aspect of consultation, the duty of fairness at common law, was the one upon which the judge and Court of Appeal found a breach. This was not challenged by the Agency on appeal, though Lord Hoffmann doubted whether this concession was right in

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the light of the specific and narrower statutory provisions. All members of the House agreed that the lower courts were right in exercising their discretion not to quash the decision on this basis. They regarded it pointless to consult on what was out-of-data by the time the matter got to the courts. They rejected submissions based upon the EIA case of Berkely [2001] 2 AC 603 that it was wrong to refuse to quash such deficiencies in information. Nuisance In Watson & Others v Croft Promo-Sport Ltd [2008] EWHC 759 (QB), the Claimants sought an injunction and damages in relation to the use of land 300 metres from their homes as a motor circuit. Their claim was that the Defendant had wrongfully caused or permitted excessive noise of a loud, intrusive and repetitive nature for a period of years from the circuit, which operated for about 190-200 days each year. The injunctive relief sought was not to prohibit the use of the circuit entirely, but to restrict its use to what was said to be reasonable in terms of activities and days. The Defendant argued that the noise was what was to be expected in a locality whose nature and character had been established by planning permissions for the use as a motor circuit granted in 1963 and 1998, and by a section 106 agreement entered into in 1998 which constituted an enforceable planning obligation. Under the agreement, the defendant had agreed to an elaborate set of monitored restrictions for the benefit of those who would otherwise be affected by the circuit’s unrestricted use, which related to the types of activities and noise levels from those at the circuit. The parties agreed that the issues arising were (i) the nature and character of the neighbourhood relevant for the purposes of assessing the question of nuisance, in particular the effect of the planning permissions and unilateral agreement; (ii) whether the use of the land was unreasonable if the nature and character was not affected by the planning context; (iii) whether the claimants could be said to have “come to the nuisance”; (iv) whether the claimants had acquiesced in the infringement of their common law rights such that it would be unconscionable for them to be granted an injunction and/or damages; (iv) the nature of any relief which might be granted. Simon J found that a planning authority had no jurisdiction to authorise a nuisance, although it may have the power to permit a change in the character of a neighbourhood. The issue of whether a permissive planning permission had changed the character of the neighbourhood so as to defeat what would otherwise constitute a claim in nuisance, was a question of fact and of degree. It was more likely that a change in the character of a neighbourhood could be identified where there had been a “strategic” planning decision affected by considerations of public interest. In the present case it was clear that the circuit had been run for a number of years in a way that was consistent with the essentially rural nature of its neighbourhood. That essential character had not changed despite the gradual development of the circuit with an intensification of the level of noise. The planning permission was not determinative of the issue of private nuisance in such a case and what was essentially an administrative decision did not extinguish private rights without compensation. In the light of the evidence as to the intensity, frequency and duration of the noise it was clear that the defendant could not establish the defence of reasonable user. Whilst the defence of “coming to the nuisance” might work injustice, the

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law was clear and binding, short of the House of Lords, and it worked no injustice in the present case as the defendant could not show that the claimants had come to the nuisance with full knowledge of it, so that the defence failed. Acquiescence was an equitable doctrine under which equitable relief, whether by way of injunction or equitable damages would be barred on the ground that there had been delay coupled with matters which, in all the circumstances, made it unconscionable for a party to continue to seek to enforce rights that he had at the date of the complaint. If detriment was present it would usually lead the court to conclude that it would be unconscionable for a party to seek to enforce those rights. In the present case, there had been neither conduct nor inactivity by the claimants such that it would be unconscionable for them to continue to seek to enforce their rights and the defendant had not made out a defence of acquiescence so as to defeat the claimants’ equitable claims. However, the present case was not an appropriate one for the grant of an injunction. First, although falling short of giving rise to a defence of acquiescence, there had been considerable delay in bringing the proceedings. Secondly, the claimants had shown that they were prepared to be compensated for noise on up to 40 days. Whilst a willingness to compromise should not count against a party, a willingness to accept compensation instead of an injunction constituted a matter which counted against granting an injunction, as it demonstrated that the claimants could be compensated by the award of damages. Nuisance: account of profit from nuisance An unsuccessful appeal has been made against a County Court decision rejecting a claim for account of profits for nuisance in the form of loss of a right to light. In Forsyth-Grant v Allen & Another ([2008] EWCA Civ 505) the appellant was the owner of a hotel next to which the respondent had purchased land and had been granted planning permission to build two houses. The hotel owner opposed to the development and eventually issued proceedings in trespass and nuisance, including claims for an injunction and for an account of profits as a result of her loss of a right to light. The respondent had offered compensation for the loss of light and had been the party which had identified this as an issue. Damages were awarded in the County Court, but the claim for account of profits was dismissed on the grounds that the case was not an exceptional one which justified such an order. The judge held that in view of her unreasonable conduct an injunction would have been refused, so that damages should be assessed on the basis of actual loss in the form of capitalised reduced letting values of the hotel rooms, rather than the amount the developer might reasonably have negotiated. The hotel owner then appealed to the Court of Appeal on a number of grounds arguing that the County Court judge had been wrong in holding that an account of profits could only be awarded in exceptional circumstances. The Court of Appeal dismissed the appeal, finding that whilst in cases of trespass where the trespasser had made use of a claimant’s land the measure of damages was the value to the trespasser of the use of that land, in cases of nuisance the possibility of an award of damages on a restitutionary basis had been limited by ‘Stoke on Trent City Council v W & J Wass Ltd’ ([1988] 3 All E.R,. 394). The judge would have been entitled

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to reject the claim for an account of profits outright simply on the basis that it was not a remedy available in a nuisance action. Even if that was wrong then his acceptance that there was a need to show exceptional circumstances was not open to criticism. Given that the claimant had refused an invitation to bargain, as a matter of justice, she should not be entitled to any greater remedy than fair valuation for the loss which she actually suffered. There was no precedent for a claim for restitutionary damages on facts directly comparable to the present case. See also the Court of Appeal ruling in Devenish Nutrition Ltd v Sanofi-Aventis [2008] (see page 36 below). Nuisance and fear of damage rather than actual damage In Birmingham Development Co Ltd v Michael Jacob Tyler [2008] EWCA Civ 859, the Court of Appeal considered the principles of nuisance in the context of a property developer who claimed an injunction restraining an alleged nuisance and for damages from a neighbouring land owner. The property owner who was developing claimed that demolition work on an adjacent factory presented an imminent danger to workers on its site. The engineer who carried out the demolition works gave evidence to the Court below, which was accepted by the judge, that despite appearances the area in question was at all material times not dangerous. Before the Court of Appeal the point of law sought to be argued by the property owner was that the judge was wrong to hold that a claimant had to prove an actual danger before being able to establish nuisance consisting of unreasonable interference with B's enjoyment of its site and it was enough that B and its advisers, and T's advisers, reasonably perceived the area to present a risk of danger to the safe occupation and enjoyment of the site, which had interfered with work on the site. Having reviewed the authorities, the Court held that a person had no cause of action against his neighbour in nuisance on the basis that his neighbour's property or activities frightened him: he had to prove that the fear was well-founded by showing on the balance of probabilities that the property or activities were actually dangerous. R v Lister 169 ER 979 and Attorney General v Nottingham Corp (1904) 1 Ch 673 Ch D applied. Statutory Nuisance: Abatement notices and costs awards against local authorities The case of R (Chiltern District Council) v Wren Davis Ltd [2008] EWHC 2164 (Admin) considers the award of costs to a local authority on an unsuccessful appeal against an abatement notice. Chiltern District Council appealed, by way of case stated, against a costs order made by magistrates in favour of the respondent company Wren Davis Ltd. The local authority

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had served the company with an abatement notice under the Environmental Protection Act 1990 s.80 requiring abatement of the noise from the use of its cooling tower within one month. The company’s appeal against the abatement notice failed, but the magistrates extended the time for compliance with the notice to six months. The magistrates ordered the local authority to pay £1,000 towards the company’s costs on the basis that it had not offered the company the option of reasonable discussions. The Administrative Court held that the magistrates should have concluded that since the local authority had successfully contested the appeal and the abatement notice had been upheld, it was prima facie entitled to its costs.

“I am entirely satisfied that the appraisal of what had occurred should have led the magistrates to conclude that the council had successfully contested the appeal and the abatement notice had been upheld. That prima facie meant that the council were entitled to their costs, having succeeded in the appeal. That is not invariably the case, but if one looks in this case to reasons why they should not have recovered their costs, it appears that the magistrates took the view that the reason why they should not have recovered their costs at all but, worse, should pay £1000 towards the costs of the company, was because the company had maintained it had not been offered the option of reasonable discussions” (Sir George Newman)

In the context of what had taken place, reasonable discussions could only have been addressed to the question of an extension of time for compliance. However, the company had not requested an extension of time or accepted that the abatement notice was valid. In those circumstances, reasonable discussion could not have taken place. The magistrates had therefore misapprehended the principle to be applied and had wrongly deprived the local authority of its costs. The local authority had reasonably pursued its statutory duty at public expense, and had succeeded in contesting the appeal. It was plainly wrong that it had been ordered to pay a contribution to the company’s costs simply on the basis that the inevitable had to occur, namely that the abatement notice had to be extended. No sensible local authority would have refused an extension of time if it was reasonably proposed.

“Those familiar with abatement notices know that in call cases councils normally gratefully receive suggestions as to an extension of time where a case is put forward in which the relevant party, having received the abatement notice is saying “We will comply but we need a bit more time”. No sensible council will not grant the time then, if it is reasonably proposed”

The order for the payment of costs to the company was set aside. Statutory Nuisance: Best practicable means and abatement notices

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In St Albans District Council v Patel [2008] EWHC 2767, the Administrative Court held that a magistrates' court had not failed to apply the proper test of best practicable means under the Environmental Protection Act 1990 s.80(7) in holding that a pub owner had established the statutory defence against the contravention of a noise abatement notice. St Albans District Council appealed by way of case stated against a decision of a magistrates' court that the respondent, Mr Patel, had established the statutory defence against the contravention of a noise abatement notice. Mr Patel owned licensed premises. Informations were preferred by the local authority against him, alleging that he had on three occasions contravened a requirement of an abatement notice under the requiring that noise nuisance be abated. It was alleged that noise nuisance from the pub garden had been heard within the property of a local resident. The magistrates held that there had been statutory noise nuisance on the relevant dates but that Mr Patel had established, on a balance of probabilities, the defence of best practicable means under the Act. The magistrates found that Mr Patel had taken various steps to reduce the noise including closing one area of the garden, and restricting the number of people allowed there. They found that the advice of an environmental health officer, from whom they heard evidence, indicated that the only way for Mr Patel to comply with the notice was to close the garden, but that the implications of doing so, from a financial perspective, would not be practicable. The local authority submitted that the magistrates had failed to apply the proper test of best practicable means under s.80(7) of the Act. It argued that the magistrates had considered only the practicability of one option, namely to close the garden altogether, but that they had not considered lesser measures such as further reducing the area of the garden used by customers, or by restricting the hours of use. The Court held that it was clear from the case stated that the magistrates were fully aware of the contention that there were lesser measures that could have been taken. It was clear that the magistrates had those lesser measures well in mind when they concluded that Mr Patel had established that he had used the best practicable means to counteract the noise nuisance. When the case stated was read as a whole, it was plain that the magistrates agreed with Mr Patel’s evidence that financial effects prevented him from employing those lesser measures, and that on the balance of probabilities, the lesser measures were not practicable. Accordingly, the test of best practicable means was properly formulated and applied. Contaminated land and personal injuries damages in Public Nuisance The Court of Appeal has dismissed an appeal against a refusal to strike out a claim of public nuisance arising from contaminated land. The case is an interesting one as it rebuts the view that the House of Lords has precluded the recovery of damages for personal injury arising out of a public nuisance. In ‘Corby Group Litigation v Corby Borough Council ([2008] EWCA Civ 463) the claimants’ mothers had lived close to a large area of land acquired by the appellant from British Steel Corporation with a view to reclamation and redevelopment. The land was heavily contaminated and the claimants alleged that their mothers were exposed during the embryonic stage of their pregnancies to toxic materials in the course of the Council's reclamation and decontamination programme and

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that this exposure caused upper limb deformities which they had all been born with. Group Particulars of Claim were served, which pleaded the case on negligence alone. In response to an action to strike out parts of the claim, the claimants served additional points of claim which included the introduction of claims based upon breach of statutory duty and public nuisance. The appellant then sought to strike out the claim in public nuisance on the grounds that as a matter of law damages for personal injury could not be recovered for public nuisance. The master found that this was a “developing area of the law” and he was not satisfied that the claim in public nuisance had no real prospects of success. Accordingly, he dismissed the application to strike out the claim in public nuisance. The appellant then appealed, which in view of the importance of the point, was ordered to be heard by the Court of Appeal. The appellant submitted that whilst there were many cases both at first instance and in the Court of Appeal in which such damages had been awarded, the recoverability of such damages had been assumed and never been in issue and, therefore, had never been the subject of a reasoned decision. In the light of the decisions of the House of Lords in ‘Hunter v Canary Wharf Limited’ ([1997] AC 655) and ‘Transco plc v Stockport MBC’ ([2003] UKHL 61), which considered an article from 1949 by Professor Newark, the appellant submitted that it could now clearly be seen that this assumption had been wrong and that previous cases in which personal injury damages had been awarded for public nuisance have been wrongly decided. Dyson LJ dismissed the appeal, finding that the passages from the cases relied upon by the appellant did not bear the weight which the appellant sought to place on them. In so far as they related to the tort of public nuisance, the observations were obiter dicta because none of the claims in either case was in public nuisance and they did not include claims for damages for personal injury. The main passage relied upon came nowhere near to being a clear statement that damages for personal injury should no longer be recoverable in public nuisance. Lord Goff merely said that there was “now developing a school of thought” that personal injury claims should be altogether excluded from the domain of nuisance and that Professor Newark was the foremost proponent of this approach. There was nothing in the passage to indicate that Lord Goff in Hunter agreed either with the developing school of thought which, if adopted, would have involved an important change in law which had been established and regularly applied for a long time. He had not intended to say anything definitive about public nuisance and the passage from the speech of Lord Hoffmann in Hunter had dealt only with private nuisance. With the qualification that Rylands v Fletcher was a special form of private nuisance, the same comment could be made about the passage from the speech of Lord Hoffmann in Transco also relied upon. Therefore, the long-established principle that damages for personal injury could be recovered in public nuisance had not been impliedly reversed by either of these two decisions of the House of Lords. Indeed, the principle had not even been criticised in any of their lordships' speeches. This was not surprising in view of what was in issue in those cases and the differences between public and private nuisance. The most that could be said was that Hunter had raised the serious possibility that the House of Lords may in the future adopt the reasoning of Professor Newark and change the law. It was not self-evident that the law should be changed and that Professor Newark was necessarily right to regard the proposition that such damages are recoverable as a “heresy”. It was important to have in mind the true nature of public nuisance and it

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seemed at least arguable that Professor Newark had been wrong to describe a public nuisance as a “tort to the enjoyment of rights in land”. The definition of the crime of public nuisance said nothing about enjoyment of land and some public nuisances undoubtedly had nothing to do with the interference with enjoyment of land. The essence of the right that was protected by the tort of private nuisance was the right to enjoy one’s property. The essence of the right that was protected by the crime and tort of public nuisance was the right not to be adversely affected by an unlawful act or omission whose effect was to endanger the life, safety, health etc of the public. In those circumstances, it was difficult to see why a person whose life, safety or health had been endangered and adversely affected by an unlawful act or omission and who suffered personal injuries as a result should not be able to recover damages. It was not open to the Court of Appeal to decide that damages for personal injury were not recoverable in public nuisance. Contaminated land investigations and misrepresentation An interesting case regarding representations as to the extent of land contamination at a property has been decided by the Technology and Construction Court. In ‘Lambson Fine Chemicals Ltd v Merlion Capital Housing Ltd’ ([2008] EWHC 168 (TCC)), the claimant was the vendor of the property sold it to the defendant but leased it back to carry out some demolition works. Part of the purchase price was retained, with a residual sum claimed by the vendor. The defendant resisted the claim on the basis that it had entered into the sale agreement with the claimant in reliance upon a written representation made by the claimant’s director as to the extent of the contamination at the property. The defendant maintained that this representation had been made fraudulently and that, following its purchase of the property, it discovered that over 14,000 tonnes of soil had been contaminated by “Blue Billy”, a waste product from gasworks which contained high concentrations of cyanide. In addition to the allegations of fraud, the defendant made alternative claims for breach of contract and/or breach of warranty based on the same written representation. The defendant counterclaimed a sum representing the cost of excavating and removing the soil contaminated by the Blue Billy. An environmental survey had been carried out whilst Heads of Terms were being negotiated and the subsequent report included a cost estimate for the principal soil and groundwater liabilities identified on site. The defendant was involved in drafting letters from the reports author regarding possible remediation and management strategies. There was some dispute as to what statements were made at a pre-contract meeting, following which two letters were provided by the claimant. The first stated that it had “not deposited generated or utilised the Blue Billy” identified. The second stated that it was not aware of any further contamination other than that specifically identified in the environmental survey report and that the parties had agreed that borehole tests indicated a level of contamination for the property as a whole and should not therefore be construed as meaning that there was only contamination at the site of those boreholes. The sale included a retention of monies regarding possible clean up of further contamination caused by the demolition works. The defendant then discovered that much larger quantities of soils on the property had been contaminated by “Blue Billy” than had been suggested by the environmental survey and report. Following negotiations regarding the funding of clean up costs, there was an agreement to share the costs of certain remedial

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works. The claimant then formally requested the release of retained funds and subsequently commenced proceedings. HH Judge Peter Coulson QC found that the second letter had to be interpreted against the relevant factual background, which was that the property was extremely valuable, with huge development potential, as a result of which the property’s value had been generally unaffected by the particular amount and degree of contamination at the site, and that the defendant had been very keen to buy it. Both parties were sophisticated commercial organisations, keen to get the best deal for themselves from the sale of the property. The claimant had given full disclosure and had never sought to keep back information or to obstruct the defendant or environmental consultant from obtaining whatever information they had reasonably required prior to the sale. It had been known to everyone involved that there was heavy and widespread chemical contamination across the site, so that extensive remediation works were going to be required. The precise details of those works were the responsibility of the defendant, as the purchaser of the property, and the precise scope of the works was out of the hands of the parties, being dictated in large part by what the local authority was prepared to accept and what remedial works it insisted upon. The report and surveys on which it was based had been available to both parties. On its proper construction, the second letter did not contain an actionable misrepresentation, let alone one which evidenced fraud or deceit. The claimant had no knowledge of any further contamination beyond the facts and matters set out in the report. The claimant was entitled to the outstanding sum from the retention money, with interest. In carrying out the remediation work to remove the Blue Billy, the defendant had relied on the agreement that the claimant would contribute to the costs of that work and that agreement had been unaffected by the finding that there was no misrepresentation. It would be unconscionable now to allow the claimant to seek to avoid being bound by that agreement. Although it concerns a private law action based upon alleged misrepresentations, rather than regulatory action under Part 2A of the Environmental Protection Act 1990, the case provides an illuminating example of the complexities of investigating contaminated sites, structuring deals with appropriate documentation and the importance of parties’ knowledge. The critical issue of securing evidence of such knowledge in allocating and apportioning remediation liabilities is particularly evident, albeit that such knowledge was absent in the case itself. Waste: Spilled materials and waste: from the deliberately made to the accidentally dropped The problematic issues and forensic conundrums on waste continued with Case C-188/07 Commune de Mesquer v. Total France SA (Judgment handed down on 24 June 2008). This case concerned the “Erika” oil spill off Brittany in 1999, and raised the question of whether the heavy fuel oil which ended up on the beaches was waste.

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Advocate General Kokott’s earlier opinion was that that heavy fuel oil as the product of a refining process, which meets the user’s specifications and is intended to be used as fuel, is not waste. Spillage of the oil, where it became mixed with water and sediment, did however constitute its discarding as waste. The ECJ followed this approach and held that

1) heavy fuel oil sold as a combustible fuel, does not constitute waste within the meaning of Directive 75/442, where it is exploited or marketed on economically advantageous terms and is capable of actually being used as a fuel without requiring prior processing.

2) hydrocarbons accidentally spilled at sea following a shipwreck, mixed with water

and sediment and drifting along the coast of a Member State until being washed up on that coast, constitute waste within the meaning of Article 1(a) of Directive 75/442, where they are no longer capable of being exploited or marketed without prior processing.

That then raised the issue of whether the producer of the heavy fuel oil may be ordered to bear the cost of disposing of the waste, pursuant to Article 15 of the Waste Framework Directive. The AG held that this was possible if they could be accused of contributing personally to the leak or spill. However, it would also be compatible with that provision to limit the liability of the producer and/or seller and carrier in accordance with the 1969 Convention on Civil Liability for Oil Pollution Damage and the 1971 Convention on the Establishment of a Fund for Compensation for Oil Pollution Damage, as amended. The ECJ held that

For the purposes of applying 15 of Directive 75/442 to the accidental spillage of hydrocarbons at sea causing pollution of the coastline of a Member State:

– the national court may regard the seller of those hydrocarbons and charterer of the ship carrying them as a producer of that waste within the meaning of Article 1(b) of Directive 75/442, and thereby as a ‘previous holder’ for the purposes of applying the first part of the second indent of Article 15 of that directive, if that court, in the light of the elements which it alone is in a position to assess, reaches the conclusion that that seller-charterer contributed to the risk that the pollution caused by the shipwreck would occur, in particular if he failed to take measures to prevent such an incident, such as measures concerning the choice of ship;

– if it happens that the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea is not borne by the Fund, or cannot be borne because the ceiling for compensation for that accident has been reached, and that, in accordance with the limitations and/or exemptions of liability laid

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down, the national law of a Member State, including the law derived from international agreements, prevents that cost from being borne by the shipowner and/or the charterer, even though they are to be regarded as ‘holders’ within the meaning of Article 1(c) of Directive 75/442, such a national law will then, in order to ensure that Article 15 of that directive is correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the waste thus spread came. In accordance with the ‘polluter pays’ principle, however, such a producer cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur.

The conclusions that the oil is not waste, but may become so when spilled, are not particularly startling, but the discussion on Article 15 is extremely interesting. The problem facing the Court is that Article 15 provides in apparently mandatory terms that in accordance with the polluter pays principle, the cost of disposing of the waste must be borne by the holder and/or the previous holders or the producer, whereas the relevant Conventions to which France was a party, require liability to be channeled to the ship-owner. Thus a departure by Community law from that position would create a conflict between those obligations. Article 15 was therefore to be interpreted so far as possible to avoid such a conflict. Article 15 was read as simply designating a group of persons who may be liable, from whom the person liable should be selected on the basis of the polluter pays principle. However, that principle does not provide clear and definitive rules, a task described by the AG at para. 123 as “a priority task for the legislature” – doubtless a nod in the direction of the proposed new Waste Framework Directive currently progressing through the Community institutions. There is no obvious single rule – in some cases Community law places liability on the producer of the product which becomes waste, in some cases not. That was suggested by the AG to be a lawful and proportional approach, but required express legislative action. In other cases, as in Van de Walle, the risk should lie only with the producer in so far as they could “influence the extraordinary creation of waste”, i.e. did they have some responsibility for the escape, not just the creation of the product. Waste Offences and Sentencing In R v Tajinder Singh Dhaliwal [2008] EWCA Crim 1275 the Court of Appeal (Criminal Division) considered the sentence imposed for knowingly permitting the deposit and keeping of controlled waste. Mr Dhaliwal appealed against a total sentence comprising a £25,000 fine and an order to pay £25,000 prosecution costs imposed for knowingly permitting controlled waste to be deposited and keeping controlled waste contrary to s.33(1)(a), s.33(1)(b) and s.157(1) of

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the Environmental Protection Act 1990. He was the sole director and shareholder of a skip hire company. An environmental officer had informed him about the various laws relating to waste disposal. The officer later went to visit his company site and found a large amount of mixed waste and one of his lorries tipping waste. The officer estimated that there was more than 1,000 tonnes of waste. When the officer returned to the site at a later date he saw the company pick up truck and fresh waste that looked like it had come from skips. A couple of weeks later the officer returned again and found that further skips had been emptied. During the trial several documents emerged, the origin of which was suspicious. In the circumstances Mr Dhaliwal’s counsel felt obliged to withdraw from the case. Mr Dhaliwal was convicted after a second trial. He argued that (1) the judge erred in sentencing him on the basis that he and the co-accused company were the same entity; (2) the fines were manifestly excessive and insufficient account was given to the fact that he had removed the waste from the site at a cost; (3) the costs were manifestly excessive. The Court of Appeal held that (1) The judge was correct to sentence Mr Dhaliwal and not the co-accused company. (2) The judge was right to find him to have been entirely dishonest and to have taken the robust view that he had the means to pay. The penalty should be severe. He had only cleared the site because he had been caught. If he had not done so the fines would have been higher. The judge was in the best position to judge the seriousness of the offence. (3) If Mr Dhaliwal had pleaded guilty costs would not have been incurred to the same level. The public should not have to pay for his offending. The judge would not have made a costs order unless the costs had been reasonably incurred. In the absence of waiver of legal privilege in order to investigate the circumstances of the first trial, the judge was entitled to draw an inference that he should pay the costs for both trials. It was difficult to assess whether the costs reflected the fact that D had been acquitted of some of the counts on the indictment. It would have been more useful if the judge had made more specific findings. However the judge must have made some reduction in the total and he was within his rights to make a robust summary assessment of the matters. Court of Appeal decision on sentencing A decision by the Court of Appeal in sentencing can often be useful guidance for sentencing in magistrates courts. Although [2008] EWCA Crim 1963 is concerned with health and safety and a fatality, a couple of points emerge which are useful for sentencing for environmental offences. TDG (UK) Ltd, a large warehousing and distribution company, appealed against fines of £250,000 and £75,000 for its breach of the Health and Safety at Work etc. Act 1974 s.2 and the Management of Health and Safety at Work Regulations 1999 reg.3(1), which had resulted in an employee's death. An employee had been carrying out checks on his trailer when another trailer rolled backwards and trapped him. The employee was crushed and pronounced dead at the scene. A non-employee driver had failed to apply the handbrake to his tractor unit when he sought to couple it up with V's trailer unit. The company had failed to ensure that the trailer had its own independent parking brake applied when parked uncoupled. The company had acquired the site several years prior to the accident

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and since then operators had not ensured that trailer parking breaks were applied as a matter of routine. That was contrary to the company’s policy and represented a failure to enforce that policy. In addition, TDG had not prepared a risk assessment for uncoupling operations at the site and had not implemented its own training syllabus. The non-employer driver pleaded guilty to an offence under s.7 of the Act and was fined £1,000 and ordered to pay £2,000 in costs. The company was ordered to pay £25,000 costs. Since the incident T had taken significant steps to remedy the faults that had led to the breaches. The company appealed against the fines arguing they were manifestly excessive. The Court of Appeal agreed and substituted them with fines of £225,000 and £50,000 respectively. The Court acknowledged that it is generally recognised that in cases of this sort there can be no set tariff. Nonetheless as the Court of Appeal made clear in R v (UK) Limited AGC Automotive [2007] EWCA Crim 3396, fines should not be wholly arbitrary and it is possible, looking at decided cases, to get a broad feel of a level of the fine. The Court said as follows in that case:

“As to what the normal scale of penalties is, it is right that this Court has consistently declined to set any kind of tariff because of the very wide variety of circumstances attending prosecutions of this kind. Nevertheless, levels of fine should not be wholly arbitrary, and it is possible by looking at a range of recent cases in this Court (to which we were helpfully referred) to get a broad feel for the levels of fine imposed in cases of different levels of gravity. It is important in doing so to bear in mind that in some cases the court would be influenced by considerations of affordability or means, particularly where the defendant is a small business or is in the public sector. There are no such considerations here, since the company put no material before the judge about its profitability or its assets.”

In an endeavour to get a broad feel for the range of sentences in cases involving a fatality, the Court was referred to a large number of decisions and took the view that the nearest approach to a tariff for cases involving a fatality was in the case of R v Colthrop Board Mills Ltd (2002) EWCA Crim 520, (2002) 2 Cr App R (S) 80. There the Court referred to fines of up to around £500,000 being appropriate for cases involving the death of a single employee and perhaps of serious injury of an employee, although this could rise as awareness of the importance of safety increased. The Court of Appeal took the view that the judge had correctly identified the relevant aggravating and mitigating factors in the instant case. However the immediate cause of death was the co-worked and the company had made a prompt early admission of its breach of reg.3(1). Therefore, the fine was not proportionate and attached too little responsibility to the co worker. In the circumstances the fines were too large. The fine of £250,000 for the s.2 of the Act offence was substituted for £225,000 and the fine of £75,000 for the reg.3 of the Regulations offence was substituted with a fine of £50,000.

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The costs order remained.

Waste water escaped from a public sewerage system is “controlled waste” for the purpose of section 33 of the Environmental Protection Act 1990.

In R (on the application of Thames Water Utilities Ltd) v Bromley Magistrates’ Court & Environment Agency & Water Services Regulation Authority [2008] EWHC 1763 (QB) a two-judge strong divisional court was required to determine as a preliminary issue whether escapes of waste water from a public sewerage system were "directive waste" within the scope of Directive 75/442/EEC, as amended by Directive 91/156/EEC, and thus subject to the enforcement authority of the interested party, the Environment Agency (“EA”), under the Environmental Protection Act 1990 s.33.

The claimant utilities company (TWU) had been prosecuted by the Agency in the defendant magistrates' court for alleged offences under s.33 of the Act arising out of deposits of untreated sewage on an area of land. The section made it an offence to "deposit controlled waste on any land" without a waste management licence. By the Controlled Waste Regulations 1992 reg.7A, waste that was not directive waste was excluded from the definition of "controlled waste". The judge decided that he did not have jurisdiction to determine whether, as a matter of law, sewage escaping from pipes maintained by a statutory undertaker was "controlled waste" as so defined. The instant court held that he did have jurisdiction, but rather than remit it, agreed to decide the matter itself, first making a reference to the European Court of Justice.

The ECJ held that escaping waste water was in principle "waste" within art.1 of the Directive, but it left open the issue as to whether it was covered by other domestic legislation so as to be excluded under art.2. For that to be so, the domestic legislation must contain "precise provisions organising the management of the waste in question", and must ensure a level of protection of the environment equivalent to that guaranteed by the Directive, in particular art.4, art.8 and art.15.

Its reasoning was that the Waste Framework Directive clearly included waste waters within the definition of “waste” in Annex I and so the question was that of whether these were ‘discarded’. The verb “discard” had to be read in the light not only of the aims of the Waste Framework Directive of protecting human health and the environment but also Article 174(2) EC which provided that ‘Community policy on the environment shall aim at a high level of protection and based on the precautionary and preventative principles. The fact that waste water escaped from a sewerage network did not affect its character as “waste” within the meaning of the Waste Framework Directive; the escape of waste water from a sewerage network constituted an event by which the sewerage undertaker, the holder of that waste water, ‘discards’ it. The fact that the waste water was spilled accidentally did not alter the outcome (Van de Walle & Others (Case C-1/03) was referred to). The Court had held that the Waste Framework Directive would be made redundant in part if hydrocarbons which caused contamination were not considered waste on the sole ground that they were spilled by accident, and the same reasoning had to be

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applied to waste water which leaked accidentally. The answer to Question 1 had therefore to be that waste water which escaped from a sewerage network maintained by a statutory sewerage undertaker pursuant to Directive 91/271/EEC and the legislation enacted to transpose that directive constituted “waste” within the meaning of the Waste Framework Directive

Under Article 2(1)(b)(iv) of the Waste Framework Directive waste waters, with the exception of waste in liquid form, were excluded from the scope of that directive, provided that those waste waters were already covered by ‘other legislation’, which the court had found could include other domestic legislation. To be regarded as ‘other legislation’ within the meaning of Article 2(1)(b), the rules in question had to not merely relate to a particular substance, but to contain precise provisions organising its management as waste within the meaning of Article 1(d) of the directive and ensuring a level of protection which was at least equivalent to that resulting from the Waste Framework Directive. Although it regulated the collection, treatment and discharge of waste water, Directive 91/271/EEC did not ensure such a level of protection. It did no more than lay down, as regarded leakage of waste water, a duty to prevent the risk of such leaks when designing, constructing and maintaining collecting systems and did not lay down any objective in relation to the disposal of waste or decontamination of contaminated soil. It could not therefore be regarded as relating to the management of waste water which escaped from sewerage networks and ensuring a level of protection which was at least equivalent to that resulting from the Waste Framework Directive. It had not been possible to determine whether the national legislation contained precise provisions organising the management of the waste and ensuring such a level of protection, and that was a matter for the national courts.

Directive 91/271/EEC did not contain any provision which concerned, as such, waste water escaping from a sewerage network. It could not therefore be regarded as containing specific rules for particular instances or supplementing those of the Waste Framework Directive on the management of waste water which escaped from a sewerage network.

Back in the domestic Court TWU submitted that there was such domestic legislation, and relied upon a combination of statutory provisions, namely Part III and Part IIA of the 1990 Act, the Water Industry Act 1991, and the Urban Waste Water Treatment (England and Wales) Regulations 1994. The Divisional Court held that it was not in dispute that the escape of untreated sewage onto land might bring into play one or other of the provisions identified by TWU. However, what was much more difficult was to understand how, individually or together, they could be described as "precise provisions organising the management of the waste". The requirement for precise provisions was not met by piecing together a patchwork of miscellaneous provisions that, taken together and depending on how they were operated in particular cases, might achieve similar practical effects to those of the Directive. The fact was that there were no precise provisions governing the management of waste that escaped unintentionally from the sewerage system. Accordingly, they were not "covered by other legislation" in the sense explained by the ECJ. In answer to the preliminary

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question, sewage escaping from pipes maintained by a statutory undertaker was "controlled waste" within the meaning of s.33 of the 1990 Act. The case was remitted to the magistrates' court to be determined on the merits.

Financial guarantees, repudiation and lawfulness of waste shipments The case of ‘Catalyst Recycling Ltd v Nickelhutte Aue GmbH’ ([2007] EWHC 866 (QB)), regarding the entitlement to terminate a contract for transfrontier shipments of waste. The case concerned a defendant German company (Nickelhutte) which specialised in the transport and processing of waste metals and had an agency agreement with the claimant English company (Catalyst) granting exclusive rights to source and ship to it waste metal from within the UK and Eire. Under Art.27 of the Transfrontier Shipments of Waste Regulation (259/93/EEC) an essential requirement for shipments was that an adequate financial guarantee or equivalent insurance was in place for waste exporters so that the return of waste could be secured if necessary. The German competent authority for waste shipments issued an administrative decision which declared that it did not consider that any valid, or sufficient, financial guarantee was in place for Catalyst, so that shipments by it would be unlawful. Despite this, shipments took place from the UK and Eire, which were quarantined upon arrival at Nickelhutte’s premises in Germany. Catalyst successfully appealed the German competent authority's decision, which accepted that a valid financial guarantee had been in place at all times. The competent authority nevertheless maintained that the three shipments had been in breach of German Administrative Law on the basis that such shipments had been unlawful until the authority had been satisfied as to the existence of the guarantee. Nickelhutte then sought to terminate the agency agreement on the grounds that unlawful shipments had been made, and Catalyst brought proceedings claiming wrongful repudiation of contract on the basis that the shipments had, in fact, been lawful. The claim was allowed at first instance, with HH Judge Grenfell finding that the relevant provisions of the German legislation placed the primary responsibility for determining the suitability of the financial guarantee on the exporting competent authority and the importing competent authority of destination was only obliged to investigate this in exceptional cases. The factual position in relation to the English and Irish shipments notifications had been different, but the in both cases the importing competent authority had not had sufficient reason to believe that the financial guarantee was invalid, so that there had been no breach of the national Waste law and it was unlikely that a prosecution based on an alleged infringement of German law would have succeeded. There was nothing in German law which suggested that a mere concern as to the validity of the financial guarantee had been sufficient to render unlawful that which was plainly lawful under Art.27. The general consent provided under Art.9 of the 1993 Regulation rendered the intervention of the importing competent authority unnecessary unless the national legislation gave it authority to do so, which had been found not to be the case. As the shipments had been lawful, Nickelhutte's termination of the agency agreement had constituted a repudiatory breach and Catalyst was entitled to damages.

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The case has now been the subject of an unsuccessful appeal to the Court of Appeal in ‘Catalyst Recycling Ltd v Nickelhutte Aue GmbH’ ([2008] EWCA Civ 541). Waller LJ found that the question whether any shipment was illegal as a matter of German law turned on the proper interpretation of s. 7(1) and s. 7(2) of the German Waste Transport Law, and Section 7(1) seemed to be clear in saying that a notifier had to, before notification, have provided security. In the present case, Catalyst had provided security before notification and therefore, on a natural reading of the words, no breach of Section 7(1) could be established. Section 7(2) placed the responsibility for determination of the security on the competent authority at the place of shipment. Although it allowed, in certain circumstances, the authorities in the importing country to determine the adequacy of the required security, that was only if undertaken prior to shipment. Such a determination had to be by way of an administrative act (“Bescheid”) determining what security was required in its place. Even if the adequacy of the security could have been said to be arguable, such an act had not been undertaken. Accordingly, no breach of s. 7(2) could be established, which equated with the view of Catalyst's expert witness and the judge could not be criticised for adopting that view as correct, and finding that no illegality under German law had been established in relation to any of the shipments. Even if that was incorrect, on any view Catalyst could not be held to be in repudiation of the agency agreement. The case was neither one where Catalyst had not attempted to obtain all requisite permits under the European Regulation, nor one where it had in fact failed to obtain the financial guarantee required by Article 27. If it had acted unlawfully by reference to a provision of German law which went beyond what the European Regulation required, the breach was a highly technical one. Furthermore, it was not alleged that Catalyst had deliberately flouted a provision of German law. It had endeavoured to perform the contract, and deliver on time and a guarantee had in fact been in place. Even if general consent provided under Art.9 was not sufficient, ultimately all permissions had been granted and there had been no breach of any of the terms of those permissions. To establish a repudiation, Nickelhutte either had to establish that Catalyst had altogether refused to carry out the contract or had been in breach of a condition of the contract or at least some term of the contract with such consequences as to amount to a repudiation. Catalyst had clearly sought to perform the contract and so far as a condition or any term is concerned it was unclear what express or implied term was relied on. Simply demonstrating that in delivering goods into a foreign country a law of that country had been broken was not sufficient on its own. The question was whether a term of the contract in relation, for example, to obtaining a financial guarantee had been broken. Nickelhutte simply had not demonstrated a breach of a condition of the contract, or any term allowing for termination or conduct on Catalyst’s part which demonstrated an intention not to continue with the contract. Waste projects In R(on the application of (1) Lewes District Friends of the Earth Ltd (2) Dove 2000 Ltd and (3) Newhaven Town Council v East Sussex County Council and Veolia ES South

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Downs Ltd [2008] EWHC 1981 (Admin) , the claimants sought judicial review of a decision by East Sussex County Council to grant planning permission to Veolia ES South Downs Limited for the construction and operation of an energy recovery facility ("ERF"), together with ancillary infrastructure including a waste transfer station The hearings proceeded as two joined rolled up hearings of the claimant’s applications for permission to apply for judicial review, with the substantive hearing to following if permission was granted. The judgment of Sullivan J highlights the pragmatic approach of, some judges at least, to challenges to decisions by public authorities and demonstrates the difficulties that detailed academic arguments can run into. The Claimants challenged the grant of planning permission on 5 grounds; three of which Mr Justice Sullivan concluded were not arguable. Two of the three grounds related in part to an interpretation of the local plan and the relevant planning officer’s report, which the Judge said was not supportable. The third ground related to the application, by the local planning authority, of the guidance in PPS 25 to development and flood risk. Sullivan J did not accept the Claimant’s argument that the planning authority had failed to apply the guidance properly but said that in any event:

“The complaint made by the claimants is, in any event, wholly academic because PPS25 advises local planning authorities to work in partnership with the Environment Agency …The defendant consulted the Environment Agency…It did not raise any objection… In this respect the case is readily distinguishable from R(Environment Agency) v Tonbridge and Malling Borough Council [2005] EWHC 3261 Admin, where it was the Environment Agency itself which was challenging a grant of planning permission because it was contended that the sequential approach in PPS25 had not been adopted by the Local Planning Authority in that case….The complaint is wholly artificial and treats policy advice as though it was a legal obstacle test rather than an aid to practical environmental decision making”.

The Judge then considered the two grounds he thought had more merit which were as follows:

- the County Council erred in law and had regard to an immaterial consideration in relying upon the Pollution Prevention and Control permit which had been unlawfully granted and was subsequently quashed by the High Court

- The County Council failed to have regard to a material consideration being the recycling targets for 2020 and 2025 in Regional Spatial Strategy Policy W6 and the requirement to provide facilities to meet those targets in Policy W7

PPC permit: The Claimants sought to argue that, having been quashed, the PPC permit never had any legal effect whatsoever and therefore, in relying upon it in the report the defendant took into consideration a legally irrelevant matter. Mr Justice Sullivan again adopted a more pragmatic approach:

“In my judgment it is unnecessary to examine the consequences in legal terms of

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the quashing of a permit or consent, not least because relief in judicial review is a matter for the discretion of the court. Thus, in practice in such cases, the court will examine the extent to which and the reasons why the PPC permit was relied upon by the defendant when granting planning permission and the reasons for quashing the PPC permit to see what effect, if any, those reasons had on the defendant local planning authority’s reliance on the PPC permit when granting planning permission…”

Having stated the relevant principle, Sullivan J then considered the officer’s report and noted that it followed the approach laid down by the Court of Appeal in Gateshead MBC v Secretary of State for the Environment [1995] ELR 37 (‘the Gateshead approach’) that planning and pollution control regimes are separate but complementary. He attached a great deal of weight to the fact that the Agency had agreed that the permit should be quashed because of a lack of full reasoning on CO2 emissions and not because it had any concerns with the substance of the permit. The Agency subsequently reissued the permit for consultation and its substance had not altered although the reasons for imposing the various controls and conditions had been amplified.

“In summary, the Environment Agency’s views, as reported to the [Defendant planning] committee in the [planning officer’s] report, have not significantly changed. It has been prepared to amplify those views by giving further reasons. If the Agency’s conclusions are legally flawed, and that is the conclusion in any future judicial review proceedings, then the position will be that even though there is a planning permission the [energy recovery facility] will not be able to operate unless and until a PPC permit. However it will not mean that the grant of planning permission is invalid once the separate or complementary nature of the two regimes is properly recognised. For these reasons I reject Ground 1”

Waste targets:The Judge rejected the argument that there was no reference in the planning officer’s report to the recycling targets for 2020 and 2025 in Regional Spatial Strategy Policy W6.

“As a matter of common sense, the further ahead one looks (especially if one looks to 2025) the uncertainties are bound to increase. I appreciate that the extent to which they increase is a matter for the judgment of the local planning authority, but in respect of both the targets which are described in terms as being aspirational and in terms of the figures for future arisings, common sense suggests that the further ahead one looks the more uncertainties there are. There is a danger of a loss of proportion in judicial review proceedings because, inevitably, attention is focused upon a particular criticism, which, in the present case was only a small part of a wide ranging policy picture. Against this background it can be seen that the complaint is academic given that, in light of the defendant’s own attitude to those targets, very little weight would have been given to them by the committee had they been expressly referred to. The report should not be considered in isolation but in this surrounding

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context…. Sullivan J concluded by saying he would have granted permission to apply for judicial review in respect of these two last grounds but that he did so only to refuse the substantive application. As is often the case, the transcript of the discussion between Counsel and the Court dealing with costs and permission to apply highlights several interesting, practical points, including:

- The Defendant sought its so called ‘Mount Cook’ costs (i.e the costs of the acknowledgement of service) and the costs of the substantive hearing (approx £47,000) and provided separate schedules for each set of costs

- The Claimants sought to rely on the [Working Party report on access to environmental justice} to argue for no order as to costs or a costs cap which limited the exposure of each of the Claimants to costs of £10,000, as per an earlier (without prejudice save as to costs) proposal made to the Defendant County Council

- As the hearing was a rolled up hearing, the claimants had been deprived of any protection they might have expected under the principles of the Mount Cook case that would apply to a permission hearing

- The Judge decided to have submissions in writing on costs but indicated that his provisional view that detailed assessment would be appropriate given the costs were contensious. The matters of principle for consideration were whether there should be some form of capping order or no order for costs or some alternative order which reflected the fact the hearing was a rolled up hearing which deprived the Claimants of ‘Mount Cook’ protection

Second hand household electrical items as“waste” The Divisional Court has given a ruling on whether used household electrical items awaiting repair and resale constitute “waste” for the purposes of the Environmental Protection Act 1990. In ‘Environment Agency v Thorn International UK Limited’ ([2008] EWHC 2595 (Admin)), the respondent was a company which bought used household electrical goods, such as refrigerators and computers, for re-sale. These had been taken by a third party from electrical appliance retailers who had supplied a replacement product to consumers and had contracted to take the used appliance away. The respondent attended the third party’s warehouse and inspected the used appliances which were offered for sale. If satisfied that an appliance was still functioning or capable of repair, the respondent would purchase items from, transporting them and storing some of them outside for a week prior to taking them inside for repair and refurbishment. Once repaired and refurbished, the items were purchased by second-hand retailers for sale to the public or sold in the respondent’s own retail stores. The Agency considered that the electrical items stored outside were waste and in particular “controlled waste” for the purposes of s.75 of the 1990. Accordingly, the Agency considered that the storage of the items

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without a waste management licence was contrary to s.33 of the 1990 Act and brought a prosecution. At trial, the Magistrates found that the items did not comprise “waste”, following which the Agency appealed, submitting that an item was discarded by the consumer, and became waste, at the moment the consumer made a contract with the retailer to exchange his old appliance for a new one. The Agency’s view was that an item did not cease to be waste by virtue of the process of selection by the respondent, and only ceased to be waste once it had been repaired. The Divisional Court dismissed the appeal and found that the relevant items were not “waste” at the time that the items were stored by the respondent. The key question was whether the items had been discarded in the light of previous case law (‘Inter-Environnement Wallonie ASBL v Region Wallonie’ (C-129/96). There were obvious examples of material to be found in previous cases which were surplus to requirements and no longer required for their original purpose (‘ARCO Chemie’ (C-418/97) and ‘OSS Group Ltd v Environment Agency’). By way of contrast, electrical items which were exchanged for replacement products could hardly be said to be no longer required for their original purpose. It was far too stringent a rule that every time a consumer no longer wished to keep such an item it automatically became “waste” and the Magistrates had been entitled to find that the items in question, even if they should have been regarded as waste at an earlier stage, were not by the time they had become selected by the respondent. The respondent regarded them as capable of reuse with some repair and refurbishment and the mere fact that something which in one form was undoubtedly waste remained waste until its character had changed by a process of recycling did not establish a rule of law that any item which required repair or refurbishment was waste until that process was concluded.

Landfill Tax: A waste management company’s materials not taxable under s40(2) of the Finance Act 1996.

In Revenue & Customs Commissioners v Waste Recycling Group Ltd [2008] EWCA Civ 849 the appellant commissioners appealed against a decision that certain categories of material used at a landfill site by the respondent waste management company (WRG) for engineering purposes or daily cover were not taxable as waste within the Finance Act 1996 s.40(2)(a). WRG was the representative member of a group of companies which provided waste management services. WRG had sought a refund of landfill tax from the commissioners in respect of inert materials that it had used either to provide the daily cover for active waste required by the terms of its licence or in the construction of roads on its sites, on the basis that such use of inert material could not give rise to a taxable disposal for the purposes of landfill tax because the relevant materials had not been disposed of as "waste". The commissioners refused to grant the refund and the VAT and duties tribunal upheld their decision. WRG appealed to the High Court. The judge found that the tribunal had erred in law in concluding that the material had been disposed of as waste. The commissioners submitted that the judge was wrong to have considered that processes of recycling precluded the material earlier discarded by the producer from

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being disposed of as waste at the later stage when it was deposited on the surface of the landfill and that the judge was wrong to have considered that the intention of the original producer of the material to dispose of it as waste could be subsumed in or replaced by the site operator's use of the material on the landfill site. The Court of Appeal held that (1) Whether or not there was a liability to landfill tax in respect of the materials to which the instant appeal related depended on the proper interpretation and application of the provisions of Part III of the Act. The instant court was bound by the decision in Parkwood Landfill Ltd v Customs and Excise Commissioners (2002) EWCA Civ 1707, (2003) 1 WLR 697 in respect of the aspects of interpretation with which it dealt. But the instant court was not concerned with the applicability to the facts of the instant case of the judgments in Parkwood or in Customs and Excise Commissioners v Darfish Ltd (2001) Env LR 3 QBD, Parkwood and Darfish considered. The decisions of both the tribunal and of the judge were open to the criticism that too much time was taken up with the application of those judgments and not enough to the application of the legislation to the instant facts. The question was whether there was a taxable disposal of the materials used by WRG for daily cover and road construction. That depended on whether there was a disposal which satisfied all 4 conditions laid down in s.40(2). The decision in Parkwood established that all 4 conditions must be established at the same time. That moment must be the time at which the last of them was satisfied. That was likely to be the moment when the material was disposed of as landfill in accordance with the provisions of s.65. On the findings of the tribunal the materials were deposited on the landfill site by WRG at a time when the property in them had passed to W. It was clear that, assuming there to have been a disposal at all, the disposal relevant for the purposes of s.40(2)(a) was made by WRG on its own behalf. So the question posed by s.64(1) was whether WRG then intended to discard the materials. The word discard appeared to be used in its ordinary meaning and did not comprehend the retention and use of the material for the purposes of its owner. Section 64(2) did not apply in such circumstances because there was, at the relevant time, either no disposal or no disposal with the intention of discarding the material. (2) It followed that the relevant intention might well not be that of the original producer of the materials. There was no principle that material once labelled as waste was always waste just because the original producer of it threw it away. That was not the relevant time at which the satisfaction of the conditions imposed by s.40(2) was to be considered. The use of the relevant materials by WRG was clear and such use was conclusive of its intention at the relevant time by whatever means and on whatever terms W acquired them. The materials used by WRG for daily cover and building roads were not the subject matter of a taxable disposal as defined in s.40(2). Accordingly the appeal was dismissed Landfill tax and exemptions In Augean Plc V Revenue & Customs Commissioners [2008] EWHC 2026 (Ch) Augean PLC appealed against a decision of the VAT and Duties Tribunal upholding the refusal of Customs & Excise to grant a certificate of exemption for landfill tax

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Augean PLC owned a former quarry site that had been used for the deposit of waste as landfill which resulted in the presence of pollutants in, on or under the site. The landfill activity had, however, ceased over 10 years ago and Augean PLC proposed, as part of a plan for reclamation and redevelopment of the site, to extract all the contaminating landfill waste, to construct a modern containment feature on the site and to deposit, as landfill, hazardous waste material. Once filled, the site was to be returned to agricultural use. C's application for a certificate of exemption from landfill tax under the Finance Act 1996 s.43B was refused by the commissioners. C appealed against that decision. The tribunal dismissed that appeal, having found that the relevant activity for the purposes of s.43B(8)(c) of the Act was not the former and concluded landfilling of waste at the site, but rather the continuing one of the disposal of waste by landfill. It fell to be determined whether all relevant activities had ceased at the site for the purposes of s.43B. C contended that the objective of s.43B(7)(b) of the Act was reducing or removing the potential of pollutants to cause harm, and that where the new activity on the site involved the deposit of hazardous materials which nullified their potential to cause harm they were not "pollutants" within the meaning of s.43B(8)(c) and s.43B(10)(a). A pollutant in s.43B had to be a substance that was or was capable of being released. C submitted that as the hazardous waste to be deposited at the site would be contained within impermeable voids dedicated to such waste, there would be no emission or release of pollutants and that the relevant activity at the site, that of depositing pollutants, therefore ceased. The commissioners contended that a pollutant was a substance capable of causing pollution and that the fact that the manner in which such substances were deposited at the site would, or was anticipated to, remove the risk that they would cause pollution did not mean that, as substances, they were not pollutants. The Court held that "Pollutant" was to carry its ordinary meaning in the 1996 Act. As a matter of ordinary English, pollution was the act of polluting or, depending on its context, the product of polluting activity, while a pollutant was a "polluting agent or medium" or substance capable of causing pollution. That that was the meaning of pollution in s.43B of the Act was clear from the reference in s.43B(7)(b) to "the potential of pollutants to cause harm". While the reclamation required by s.43B(7)(b) had to reduce or remove the potential of pollutants to cause harm, s.43B(8)(c) required that the activity should not result in the "presence of pollutants" in, on or under the land. As C's proposed landfill activity would result in the presence in the land of substances capable of causing pollution, the relevant activity had not ceased and s.43B(8)(c) was not satisfied. Costs protection: caselaw post Cornerhouse In R(Compton) v Wiltshire PCT [2008] EWCA 749, the Court of Appeal (Waller LJ, Buxton LJ, Smith LJ) considered three appeals relating to the grant of PCOs. The appeals arose from two separate judicial review proceedings in which Mrs Compton, on behalf of “Community Action for Savernake Hospital”

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challenged the closure of the day hospital facility and the MIU. Separate grounds for judicial review arose in the two different claims. Waller LJ and Smith LJ (Buxton LJ dissenting) upheld the decisions of the first instance judges and dismissed the appeals. The judgments highlight differing views as to the proper interpretation of the Corner House decision. General public importance: Perhaps the key issue in the case was whether Holman J was correct to conclude that the judicial review challenge raised issues of “general public importance”. Holman J decided that this criterion was marginally satisfied. When considering this question Waller LJ concluded that: “21. It seems to me that when considering whether a PCO should be granted the two stage tests of general public importance and the public interest in the issue being resolved are difficult to separate…… 23. Where someone in the position of Mrs Compton is bringing an action to obtain resolution of issues as to the closure of parts of a hospital which affects a wide community, and where that community has a real interest in the issues that arise being resolved, my view is that it is certainly open to a judge to hold that there is a public interest in resolution of the issues and that the issues are ones of general public importance. The paragraphs in Corner House are not, in my view, to be read as statutory provisions, nor to be read in an over-restrictive way. Indeed, it seems to me there is already support for a non-rigorous approach exemplified by paragraph 19 of Lloyd Jones J’s judgment in Bullmore where he said in relation to the criteria of “no private interest”:-… This particular requirement as formulated in Corner House has been diluted in the later case law…..it is difficult to see why, if a PCO is otherwise appropriate, the existence of the Applicant's private or personal interest should disqualify him or her from the benefit of such an order. I consider that, the nature and extent of the 'private interest' and its weight or importance in the overall context should be treated as a flexible element in the court's consideration of the question whether it is fair and just to make the order. Were I to be persuaded that the remaining criteria are satisfied, I would not regard requirement 1(iii) as fatal to this application.I note that passage was approved by the Court of Appeal in R (England) (?) v London Borough of Tower Hamlets and others at para 14.” Smith LJ agreed with Waller LJ and held that:

a. There is no absolute standard by which to define what amounts to an issue of general public importance [75].

b. There are degrees to which the requirement may be satisfied; some issues may be of the first rank of general public importance, others of lesser rank although still of general public importance [75].

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c. Making the judgment is an exercise in which two judges might legitimately reach a different view without either being wrong [75].

d. Corner House does not say that only issues of national importance will qualify [76].

e. If the issue is of public importance and affects only a section of the population, it does not follow that it is not of general public importance, although it will not be in the first rank of public importance [77].

f. The question of importance must be left to the evaluation of the judge without restrictive rules as to what is important and what is general [77].

Buxton LJ strongly dissented on this issue, highlighting the very different types of case referred to in Corner House when addressing this criterion. In addition he commented that the effect of the majority decision was “very greatly to extend the types of cases in which, if other requirements are fulfilled, a PCO can be made.” [70]

Despite Smith LJ’s protestations to the contrary (see [89]) the decision does broaden out the circumstances in which the “general public interest” test will be satisfied. It is, on its face, a decision which runs directly contrary to the conclusion reached by Lloyd Jones J in R (Bullmore) v West Hertfordshire Hospitals NHS Trust3

Decisions on hospital provision, school reorganisation or any aspect of local government services which affect a significant catchment area may now fall within the Court’s jurisdiction to make a PCO.

The decision also endorses those cases in which the need for a claimant to have no “private interest” in the outcome of the case has been doubted4

.

Exceptionality: As to the question whether Corner House imposed a separate and distinct “exceptionality” test, aside from the five criteria identified in paragraph 74 of Corner House, both Waller LJ and Smith LJ decided that it did not. In practice once all five requirements were satisfied and the court thinks it right to exercise its discretion, nothing more is required and exceptionality has implicitly been satisfied [82]. Again Buxton LJ strongly dissented [64]-[66].

Compelling reasons: Both Waller LJ and Smith LJ held that, once a PCO had been granted on the papers, the defendant did need to show “compelling reasons” on any application to set aside the order5

. They concluded that the court in Corner House:

3 [2007] EWHC 1350 (Admin) 4 Wilkinson v Kitzinger [2006] EWHC 835 (Fam), [2006] 2 FCR 537, [2006] 2 FLR 397 (Fam) 5 see in particular [42] and [90]

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“was anxious to impose a procedure that would avoid drawn out preliminary skirmishes and for that reason intended, with justification, to impose a difficult hurdle (compelling reasons) on a defendant who seeks to set aside an order made on consideration of the papers.” [90]

However a complete failure by the judge at the paper stage to provide any reasons for the decision will amount to a “compelling reason” why the decision should be reviewed on its merits [93]. Consequently a note from the judge explaining his reasoning (in two or three sentences) was “essential” in all cases [93]. PCOs in the Court of Appeal:Finally the Court of Appeal laid down guidance as to the proper procedure to be followed when dealing with the question of PCOs in the Court of Appeal. That guidance is to be found at paragraphs [47] to [49] of the judgment of Waller LJ.

Cost Protection: PCOs in the Court of Appeal In R(on the application of Buglife – the Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corporation and Rosemound Developments Ltd ([2008] EWHC 475), Buglife challenged the grant of permission for development of a Royal Mail distribution depot on the site of the former power station in Thurrock. The local planning authority was Thurrock Thames Gateway Development Corporation, a statutory corporation. An issue on costs went to the Court of Appeal ([2008] EWCA Civ 1209_ (Sir Anthony Clarke MR, Maurice Kay LJ, Stanley Burnton LJ).

Buglife applied for a protected costs order capping its liability in costs. The local authority applied for an order capping its liability in costs to Buglife. The judge, who refused Buglife’s application for judicial review, ordered that there be an upper limit of £10,000 on the total amount of costs recoverable by and from Buglife in the proceedings up to the date of the hearing before him. The judge gave reasons for limiting the amount payable Buglife but did not give reasons for limiting the amount payable to it if it won. Buglife renewed its application for permission to appeal which was granted on the basis of public interest. Buglife sought two orders, the first of which would extend the costs protection granted to the proceedings in the instant court, so that the total amount of costs payable by Buglife if the appeal failed would be £10,000. Buglife also sought an order varying the PCO so as to remove the reciprocal costs cap of £10,000 on any costs recoverable by Buglife if the appeal succeeded. Buglife submitted that the PCO should be extended to include the costs in the instant court on the basis that all the considerations which led the judge below to make a PCO in favour of Buglife applied equally in the instant court; alternatively that B's liability for costs should be capped in the instant court. The local authority submitted that the fact that an order was made in the court below was irrelevant and that no PCO should be made in the instant court; alternatively that, if Buglife's liability was to be capped, fairness demanded that its costs should be capped too.

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The Court of Appeal held that

1) The court was bound to follow the guidance in R (on the application of Corner House Research) v Secretary of State for Trade and Industry (2005) EWCA Civ 192, (2005) 1 WLR 2600 The costs should in general be modest and the claimant should expect the costs to be capped. If a defendant wished to make a case for an order capping its liability, it should make it in the acknowledgement of service. Both parties should follow the guidelines in Cornerhouse as set out in R (on the application of Compton) v Wiltshire Primary Care Trust (2008) EWCA Civ 749, The courts should do their utmost to dissuade the parties from engaging in expensive satellite litigation on the question whether PCO's and costs capping orders should be made. Similar principles applied both at first instance and in the Court of Appeal.

2) The procedure set out in Cornerhouse had not been followed in the instant case. The local authority's case was not put before the court on paper before the applications for permission to appeal and for a PCO were considered by the judge. It was of great importance that issues relating to permission to appeal and to a PCO and a consequent cost capping order should all be considered at the same time and on paper. That should avoid further hearings of the instant kind. (2) The instant court saw no reason to disagree with the view formed by the judge at first instance. He expressed the view that the conditions for a PCO were fulfilled. He noted the huge discrepancy in resources available between the parties and that a rolled up hearing exposed Buglife to a greater risk as to costs. On the other hand he said that, since permission had been refused, he did not think that the claimant should have full protection. He then limited the cap to £10,000 below. There was no reason to think that he misdirected himself in any way. Since then Buglife had lost but had been granted permission to appeal. Buglife should have some protection in the instant court but it would be unfair for Buglife to have total protection, especially given the fact that there was a significant risk that Buglife would lose. The just order would be to limit Buglife's costs in the instant court to £10,000. Thus if Buglife lost in the instant court and below its total liability would be £20,000.

3) The judge thought that the local authority should also be protected. It was clear from the reasons he gave that he had regard to the status of the local authority as a public body which depended on the taxpayer for support. Although the judge should have given short reasons but had not, neither party had asked him to give reasons. There was no error of principle in the order made capping the local authority's liability below. There was no compelling reason to revisit the exercise of his discretion. It was right to cap the local authority's liability to B in an appropriate sum. A cap of £10,000 was a fair sum.

Costs protection: the first case post the Sullivan report

In R(McCaw) v City of Westminster Magistrates Court and Middlesex S.A.R.L [2008] EWHC, Lord Justice Latham (the Vice President of the Court of Appeal Criminal

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Division) and Mr Justice Nelson gave judgment on an application for a protective costs order in the first judgment following the publication of the Sullivan Report on access to justice. The Claimant sought a protective costs order to pursue an application for judicial review of a decision of a district judge in the Westminster Magistrates Court. The proceedings in which the decision under challenge was made were proceedings under section 82 of the Environmental Protection Act 1990 and related to nuisance alleged to have been caused by the interested party who is a property developer during the course of construction work. The Claimant argued that her rights under the Arhus Convention were engaged and in particular Article 9(3) (access to administrative and judicial procedures to challenge acts/omissions of public authorities) and Article 9(4) (adequate and effective remedies which are not prohibitively expensive). Lord Justice Latham held that it was right to say that the Cornerhouse decision did not take into account the material considered in the Arhus Convention and that the Sullivan Report had been published since the decision. The requirements in Cornerhouse cannot be considered rigidly. As an example the apparent requirement that there should be no private interests in the outcome of the case has been in practical terms replaced with the approach that it is merely one of the material considerations when the court comes to its conclusions. The Judge concluded as follows on the points of principle:

“I am prepared to accept..that the principles set out in Corner House must be applied flexibly. They must be applied in environmental contexts in the light of the Arhus Convention. I accept that in general terms, without wishing to seek to tie the hands of any court that considers the matter hereafter, the suggestions of the Sullivan working party should be taken into account by the court”

He was not however prepared to accept that the particular application raised points of general public interest which justified the making of a protective costs order. The decision in question by the district judge concerned whether the Claimant’s complaint under section 82 was duplicitious because it sought to add a number of other complainants. Lord Justice Latham said described this as a ‘procedural wrangle which does not affect the underlying rights of the parties and does not in my judgment engage an issues of public interest. Access to Environmental Information on support for oil & gas exploration The Administrative Court has upheld Friends of the Earth’s rights to information regarding the Export Credit Guarantee Department’s support for an offshore oil and gas exploration scheme. In Export Credits Guarantee Department v Friends of the Earth ([2008] EWHC 638 (Admin)) the ECGD, which facilitates the export of goods from the United Kingdom and insures overseas investment made by UK entities had been asked to support an offshore oil and gas exploration scheme which would have had an adverse

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impact upon nature conservation interests, namely the habitat and breeding grounds of the (protected) Western Grey whale. It invited comment from various other government departments and the FoE sought disclosure of those requests for comments and of all information received from the relevant government departments in response, under the Environmental Information Regulations 2004. The ECGD refused to disclose the information on the ground that it was exempt under reg.12(4)(e) of the 2004 Regulations as it involved disclosure of internal government communications. The Information Commissioner upheld that refusal, but his decision was overturned by the Information Tribunal, which concluded that there was no sufficiently demonstrable public interest in withholding the responses so as to outweigh the public interest in disclosure. The ECGD then appealed to the Administrative Court, arguing that the Tribunal had erred in its approach to its task and had produced an unsustainable decision. Mitting J dismissed the application, finding that in deciding whether disclosure should be made, the decision-maker had first to identify whether or not the information fell within any of the potentially exempt classes set out in reg.12(4) and (5), and then to determine whether the public interest in maintaining the exemption outweighed the public interest in disclosure. He found that, whilst the tribunal may have expressed itself unfortunately or even made errors of law, it had nonetheless applied this correct test. Mitting J further found that although it was not necessary to identify specific prejudice or harm flowing from the disclosure of the information in question in order for the exemptions to be engaged, in considering whether the public interest in maintaining the exemption outweighed the public interest in disclosure, it was relevant to consider what specific harm would follow from the disclosure of the particular information in question. As the case in question concerned a “class exemption” it was accordingly not necessary for the tribunal to satisfy itself that any particular harm was caused before it went on to consider the balance between the competing public interests. Mitting J identified that there was a legitimate public interest in maintaining the confidentiality of advice between government departments on matters that were expected to result in a ministerial decision. The weight to be given to those considerations would vary from case to case, but the cases in which it would not be appropriate to give any weight to them would, if they existed at all, be few and far between. Access to Environmental Information and mobile phone stations In a not dissimilar case to that of Export Credits Guarantee Department v Friends of the Earth (above) the Administrative Court has dismissed an appeal against a decision of the Information Tribunal requiring Ofcom to disclose certain information held by it concerning the location, ownership and technical attributes of mobile phone cellular-based stations. In ‘R. (on the application of Office of Communications) v Information Commissioner’ ([2008] EWHC 1445 (Admin)), a request was made for details regarding mobile phone base stations which were not available on the ‘Sitefinder’ website. Whilst it provided information regarding operator site reference, antenna height, transmission height, frequency range, antenna transmitter power, station type, maximum licensed power, and name of the operator, the website did not give the address of the base station, postcode, national grid reference or latitude/longitude co-ordinate. Nor did it indicate

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whether the stations were on roof tops, mounted on buildings interior or exterior, or street furniture. Ofcom accepted that the information was “environmental information” within the meaning of the Environmental Information Regulations 2004 (S.I. 2004/3391), access was refused on the grounds that it fell within the exceptions provided in Regulation 12(5)(a)&(c). Following an application by the person requesting the information, the Information Commissioner issued a decision that the exceptions were not engaged and ordered Ofcom to make the disclosure sought, which was upheld on appeal to the Information Tribunal. Ofcom then appealed to the Administrative Court under Section 59 of the Freedom of Information Act 2000, on the grounds that the names of mobile network operators was not “environmental information”, that the disclosure sought would have an adverse effect on the mobile network operators’ intellectual property rights, and that the public interest had not been considered correctly, the information Tribunal directing itself that it should not consider all the elements of the public interest in maintaining the exception when carrying out the public interest balancing exercise, and instead confining itself to the public interest factors “arising naturally from the nature of the exception”. The Commissioner accepted that the disclosure order could adversely affect intellectual property rights in the respects, but submitted that it was inherent in the scheme of the 2004 Regulations that disclosure might be required even though that would involve an infringement of intellectual property rights. The scheme was that disclosure had to be made subject to a power to refuse disclosure if two conditions were met: first, if one of the stated exceptions applied and, secondly, that the public interest in maintaining the exception outweighed the public interest in disclosure. Laws LJ found that the fact that disclosure would involve infringements of intellectual property rights was at most a balancing factor against disclosure, not an absolute bar. The public interest might override the rights in question though disclosure would not mean that the rights became wholly valueless. That information, once disclosed, would be free in the public’s hands, subject to the private law rights which intellectual property rights owners might enforce. Public participation in environmental debate and debate on epidemiological research would be hampered if the names of those producing emissions were excluded from the information provided. The Tribunal’s view on the public interest had been a reasonable one in public law terms, but more than that it accorded with the statutory scheme. The wording of Regulation 12(1)(b) and Article 4(2) of Directive 2004/3/EC referred to the interests served by refusal or the exception and the general requirement of the Directive was that grounds for refusal should be interpreted restrictively. Regulation 12(2) prescribed a presumption in favour of disclosure. The scheme was that each exception had to carry its own justification. There was a general duty to disclose and no justification had to be shown for disclosure in the first instance. The exceptions were drawn tightly and the wording suggested at least that they had to be considered exception by exception, including the public interest that attached to each exception. Access to information:noise data The case of R(Hulme) v Secretary of State for Communities and Local Government [2008] EWHC 637 involved a challenge under Section 288 of the Town and Country

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Planning Act 1990 to the grant of planning consent for a wind turbine in Devon. The inspector allowed the developer's appeal against the refusal of the local planning authority, West Devon Borough Council, of consent for the development. The Claimant Mr Hulme, is the owner and occupier of a house just under two thirds of a mile from the outer edge of the proposed windfarm, called Coxmoor. The Claimant’s challenge was on several grounds. The first was a challenge to the noise from the turbine. In particular, he wished to see the raw data upon which the figures and graphs and diagrams had been produced, to illustrate the measurements of background noise made in the environmental impact statement. The developer refused to produce the raw data for a variety of reasons, which Mr Justice Mitting said he found ‘thoroughly unconvincing’. The reasons included commercial confidentiality; that Mr Hulme, unaided, would not understand them; Thirdly, that the developer was unwilling to spend professional time and cost in assisting Mr Hulme to understand the raw data. Mitting J noted that “The developer's attitude to the disclosure of this information, as can readily be understood, might excite suspicion as to their motive in insisting that it would not be disclosed”. The Claimant sought to challenge the refusal as a denial of natural justice such as, in the end, to vitiate the decision made by the inspector on the question of noise. Counsel for the Claimant accepted that there is no traditional natural justice challenge here because the inspector did not see the raw data either, and so did not take into account anything that was not made available to the Claimant. What the inspector did was to decide in a single sentence that he was satisfied that the background noise had been appropriately measured. Mitting J said that “in hindsight, it would have been better if the inspector had set out his reasoning on this aspect of the appeal in somewhat fuller terms than he did. But in fairness to him, he had a great deal to grapple with and his decision is, in all other respects, a model of thoroughness and clarity. But as regards this issue, all that he said was:

"Having reviewed the submissions, I am content that the background noise levels have been suitably established in accordance with ETSU-R-97 methodology and that the calculations in the environmental statement, even after the modification according to the rebuttal evidence, indicates that an acceptable noise environment will prevail, both at this property and by extrapolation at others more distant from the proposed turbines."

In addition to the natural justice challenge, the Claimant challenged the decision on the basis of inadequate reasons. The law on this topic is uncontroversial and is summarised in paragraph 36 of Lord Brown's speech in South Buckinghamshire District Council v Porter (No 2) [2004] 1 Weekly Law Reports, 1953 at 1964. Lord Brown observed that the reasons could be briefly stated, and that a reasons challenge would only succeed if the party aggrieved could satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.

Mitting J stated that “If I stand back and ask myself whether, having regard to both issues viewed together, natural justice and sufficiency of reasons, Mr Hulme has demonstrated

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that he has been substantially prejudiced by either the procedure adopted or the brevity of the reasoning, the answer is simply no; at least in relation to the principal decision whether or not noise caused at Coxmoor should lead to the refusal of planning consent for this development”

Mitting J went on to consider the second, related, issue raised in this appeal, the sufficiency of condition 13 on noise. The law on the interpretation of conditions is not in doubt. It is set out in paragraph 49 of the judgment of Mr Justice Sullivan in Carter Commercial Developments Limited v Secretary of State for the Environment [2002] EWHC 1200:

"I accept Mr Morshead's submission that conditions should not be construed narrowly or strictly, nor should they be construed contra proferentes the local planning authority. Rather, they should be construed in a benevolent manner. Construing them in such a manner will mean that the court should be astute to ensure, if at all possible, that conditions are not so interpreted that they are imprecise and unreasonable."

Mitting J held that “Accordingly, applying Mr Justice Sullivan's observations to this condition, I conclude that there is no ambiguity, doubt or mistake in it in this respect. It is perfectly clear…..For the reasons which I have explained, this decision contained no error of law, nor is it open to challenge on what can be termed "Wednesbury grounds", see Ashbridge Investments Limited v Minister of Housing and Local Government [1965] 1 WLR 1320. This application must therefore fail”.

EC law/Damages: damages for a Court’s error in applying EC law In Stephen Cooper v Attorney General [2008] EWHC 2178 (QB), the Claimant has applied for an award of damages on the ground that a Court adjudicating at last instance made an error in applying EC law. It is also yet more litigation over the White City development in West London (which Mrs Barker challenged all the way up to the ECJ and back again). The proceedings were based on the cause of action recognized by the European Court of Justice in Case C-244/01 Kobler v Repulik Osterreich [2003] ECR-I 10239. The ECJ stated as follows (at para 59)

“the principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the

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competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest”

Mr Cooper as trustee of a branch of the Council for the Protection of Rural England, had applied for judicial review of a local authority's decision to grant outline planning permission and approval of reserved matters for the development of a large site in London. The ground for challenge was that the local authority officer who had decided that no environmental impact assessment was necessary had had no authority to make that decision, so that there had been a failure to comply with the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 reg.4(2), which had implemented Directive 85/337 . Those applications were heard by Richards J and rejected for reasons of delay. Mr Cooper had also sought judicial review of the local authority's decision to refuse to revoke the permission, and that application was rejected on the merits. Mr Cooper’s appeals against all three refusals were rejected by the Court of Appeal. In the judgments relating to reserved matters and revocation, the courts had stated that an environmental impact assessment was required before the grant of permission, and in relation to revocation the courts had addressed the issue on the basis that the Regulations had correctly implemented the Directive. The issues before Plender J were (i) whether the English courts had erred in EC law in the reasoning that led to the disposal of the judicial review proceedings; (ii) whether such errors were sufficiently serious to be of the type required for State liability. Plender J held that: (1) In respect of Mr Cooper’s application in relation to the outline planning permission, there was nothing incompatible with EC law in a Member State fixing a time limit within which proceedings had to be commenced. Therefore, the courts had not erred in rejecting the application by reason of delay. In relation to the decisions in respect of reserved matters and the refusal to revoke the permission, the courts had made errors of law by stating that the local authority had been obliged to consider whether an environmental assessment was required before consent was given, as that was inconsistent with the later decision of the ECJ in Commission of the European Communities v United Kingdom (C-508/03) (2006) QB 764 ECJ (1st Chamber), Commission applied. In relation to the revocation issue the courts had also erred in proceeding on the premise that the Regulations had correctly implemented the Directive, as the decision in Commission had found that in one respect that was not correct. (2) Member States had to make good damage caused to individuals by infringements of EC law for which they were responsible even where the infringement stemmed from a decision of a court adjudicating at last instance, provided that three conditions were fulfilled (a) the rule of law infringed had to be intended to confer rights on individuals; (b) the breach had to be sufficiently serious; (c) there had to be a causal link between the breach of the obligation and the loss or damage sustained by the parties, Kobler v Austria (C-224/01) (2003) ECR I-10239 AGO and Traghetti del Mediterraneo SpA (In Liquidation) v Italy (C-173/03) (2006) All ER (EC) 983 ECJ applied.

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However, claims based on Kobler were to be reserved for exceptional cases, involving errors that were manifest. In assessing whether that was the case, account had to be taken of the specific characteristics of the judicial function, which entailed the application of judgment to the interpretation of provisions capable of bearing more than one meaning. In the instant case, although there had been errors of law, the decisions had been consistent with EC law as it had been interpreted on the dates on which those judgments had been given, and were based on a plausible interpretation of the Directive. There had been no manifest error such as to give rise to liability pursuant to Kobler. Damages: compensatory versus restitutionary awards The case of Devenish Nutrition Ltd v Sanofi-Aventis (Court of Appeal) [2008] EWCA 1086 arose in the context of competition law but establishes the general proposition that damages for breach of statutory duty are limited to compensation for proveable loss suffered and do not extend to a restitutionary award, i.e a sum of money assessed by reference to the gain which the wrongdoer has made as a result of the wrong, in place of compensatory damages, that is, damages which compensate the claimant for loss suffered as a result of the wrongdoing. The term "restitutionary award" is taken to cover the case where the purpose of the award of damages is to strip the defendant of his profit and the case where its purpose is simply to cause the reversal of a benefit conferred by the claimant.

Devenish Nutrition Ltd ("Devenish") sought to set aside the decision of Lewison J on a preliminary point of law and to establish the principle that in an action for breach of statutory duty the court can in appropriate circumstances make a restitutionary award.

The question involves a fundamental issue for the purposes of the law of tort. The aim of the law of tort is to compensate for loss suffered. The courts have exceptionally also awarded damages (commonly called "user damages") by reference to the fair value of a right of which the defendant has wrongly deprived the claimant, and these awards have been made even if the claimant would not himself have sought to use that right and so incurred no loss. However, there was no question in this case of Devenish having been deprived of a proprietary right, that is, a right arising from property, to which such awards were formerly confined. Devenish relied on the recent case of Attorney General v Blake [2001] AC 268, in which a remedy of the type that it was seeking was awarded for a breach of contract not involving the deprivation of any property. It contended that compensatory damages will not be an adequate remedy. The respondents contended that the court could not apply the principle established in Blake to a purely personal tortious claim, and in particular that the court was precluded by precedent, namely the decisions of this court in Stoke-on-Trent City Council v W & J Wass Ltd and Halifax Building Society v Thomas, from holding otherwise. The respondents accept that a restitutionary award could be made for a proprietary tort. (ie a tort for which a claimant entitled to property or a property right is entitled to sue for interference on the basis discussed by Lord Nicholls in Blake, including trespass to land or for wrongful interference with goods

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Lady Justice Arden held that the overall holding in Blake is that the law on remedies for interference with property, damages in lieu of an injunction, damages for breach of fiduciary duty and breach of contract should be coherent and that the same remedies should be available in the same circumstances, even if the cause of action is different. On that basis, a restitutionary award is available in tort unless it is precluded by Wass or Halifax. In her judgment, it was precluded by Wass. However, if she was wrong in that conclusion, it was a condition of a restitutionary award that exceptional circumstances of the kind described in Blake should be shown. That condition was not satisfied in this case, principally because on the assumed facts damages would be an adequate remedy.

Devenish also had alternative arguments based on Community law. Lady Justice Arden held that Community law neither prevented nor required the recognition in domestic law of a restitutionary award as a remedy for breach of statutory duty for a breach of competition law.

See also Forsyth-Grant v Allen [2008] (page 5 above) which considered the issue in the context of a nuisance claim. Compliance with the EC Pesticides Directive The case of Georgina Downs v Secretary of State for Environment Food and Rural Affairs [2008] EWHC 2666 concerned a claim against the alleged failure by DEFRA to comply with the obligations imposed by the relevant E.C. Directive (91/414/EEC) in that the domestic regime for spraying pesticides did not provide for the necessary protection of public health, in particular the health of those such as the claimant who were residents living near fields which were subjected to crop spraying. Three grounds were relied on:

1) First, it was argued that there was no risk assessment capable of identifying and properly guarding against the effect on residents as opposed to those who might happen at the particular time to be near the field, properly described as bystanders.

2) Secondly, the approach adopted by the defendant that there should be no serious harm to human health was wrong in law: the Directive did not qualify the requirement that the use of pesticides should not result in harm to human health.

3) Thirdly, it was said that the defendant's failure to act on a conclusion from a Royal Commission report that a more precautionary approach was needed was erroneous and that at the very least cogent and clear reasons were needed to justify such a failure. There was included a submission that the failure meant that there was a breach of Article 8 of the ECHR in that the interference with the claimant's private life was disproportionate and not justified by Article 8(2). The claimant lived adjacent to fields sprayed with pesticides and had suffered from ill health for a number of years.

Having set out in detail the purpose and relevant provisions of the Directive, Collins J held that: Risk Assessment: Compliance with Annex VI of the Directive (general principles of evaluation of risk) would only be sufficient for the purposes of the Directive provided

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that such compliance adequately covered the risks to bystanders and residents. The fundamental requirement that human health should not be harmed required that the precautionary principle must be applied so that measures to ensure the protection of all who might be affected by use of the pesticide had to be considered. If there was solid evidence that raised doubt as to the safety of a pesticide unless conditions or restrictions on it were imposed, then the secretary of state had to take all necessary steps to avoid the risk of harm if it was to be authorised. Any other approach would not comply with the Directive, European Parliament v Council of the European Union (C-303/94) (1996) ECR I-2943 ECJ and Sweden v Commission of the European Communities (T229/04) Unreported July 11, 2007 CFI applied The inadequacies of the model used to assess risk of spray were scientifically justified. The Claimant had produced cogent evidence to indicate that the approach did not adequately protect residents and was in breach of the Directive. The Royal Commission on Environmental Pollution had found inadequacies and the Claimant had produced solid evidence that residents had suffered harm to their health, or that doubts had reasonably been raised as to the safety of pesticides under the existing regime. It was clear that the precautionary principle had to apply. The Claimant had provided positive evidence that local effects were attributable to exposure, and there was sufficient material to raise a real doubt as to long-term harm in some cases. The view that local effects need not be taken into account could not be justified.

The Judge noted that the Advisory Committee on Pesticides (ACP), an independent body whose members include scientists, had satisfied themselves that, despite some shortcomings in the model, the approach adopted to the risk assessment complied with the Directive and provided adequate protection for all likely to be exposed to pesticides. Whilst there were conflicting views as to the adequacy of the approach adopted, the Judge was not qualified to decide between those views nor was it an appropriate exercise for a judge to undertake on judicial review. No doubt if it were clear that one view was tainted by irrationality in the Wednesbury sense, the court could so declare. But that was most unlikely to be established and, in this context the arguments were at the very fringe of what should properly be the subject of judicial review. As May LJ said in a different context in R(Campaign to End All Animal Experiments) v Secretary of State for the Home Department [2008] EWCA Civ 417 in paragraph 1:-

"The scientific judgment is not immune from lawyers' analysis. But the court must be careful not to substitute its own inexpert view of the science for a tenable expert opinion."

Thus, although the alleged inadequacies of the model and the approach to authorisation and conditions of use had been scientifically justified (ie by the Claimant’s cogent arguments and the views of the RCEP) these views had been rejected by the ACP and by DEFRA who accepted the ACP's advice. If that were the only matter relied on in challenging the defendant, Collins J said he would not be able to find in the claimant's favour.

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However, he went on to say that this was ‘not however all by any means’ There was in his judgment solid evidence produced by the claimant that residents have suffered harm to their health or, at the very least, doubts have reasonably been raised as to the safety of pesticides under the regime which presently exists It was clear that the precautionary principle must apply.

“There has in my judgment been both a failure to have regard to material considerations and a failure to apply the Directive properly. It is in the context relevant to note that the view that local effects need not be taken into account, albeit apparently in the European Commission Guidance, cannot be justified. The reason for their exclusion is, it seems, because packet warnings can deal with them. But, as I have said, that cannot possibly help bystanders. In any event, there is sufficient material to raise a real doubt as to long term harm in some cases. They may be rare, but it is to be noted that in the Sweden case one study was regarded as sufficient to require paraquat to be removed from Annex I” (para 47 of the judgment)

Serious harm to health: It was important to bear in mind that the Directive required that a pesticide must not be harmful to human health. The word "harmful" was not qualified and any harm was prohibited. It did not have to be chronic or lasting harm and the test applied could be the same as that used to identify actual bodily harm in the Offences against the Person Act 1861. The secretary of state should not have used the word "serious"; it suggested an erroneous approach and should be removed from any guidance.

However although it should be removed from any guidance, if DEFRA’s approach is and has always been as Professor Coggon (for DEFRA) suggested, it may not in itself have resulted in an erroneous decision. However, since DEFRA had accepted that harm will be material if more than merely trifling and transient, he must make his decisions on that basis.

Reliance on the ACP: The secretary of state had acted on the Advisory Commission on Pesticide's (ACP) advice that the existing system was satisfactory and, in relying on scientific advice from the ACP in preference to that from the RCEP, he could not be said to have erred in law.

The Judge stated as follows:

“The ACP had advised that the existing system was satisfactory. The minister had acted on that advice. Public disquiet led to the independent evaluation by the RCEP. That found inadequacies and a need for measures to provide clear protection for bystanders and residents in particular. It may seem that in the circumstances the conclusions of the RCEP could be seen to be a criticism of the ACP and so the ACP's reaction could be regarded as unsurprising. However, the minister cannot be said to have erred in law by relying on scientific advice from the ACP in preference to that from the RCEP.

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Mr Fordham submitted that the defendant could only reject the report and recommendations if he had and set out clear and compelling reasons for so doing. He relies in particular on R v Avon County Council ex p M [1994] FLR 1006. That case involved an authority rejecting advice, not choosing between conflicting advice. The views of the ACP coupled with the defendant's own reasons do in my view provide all that is necessary. He is entitled to choose between experts after considering the advice. Furthermore, he is entitled to have regard to cost and whether measures are proportionate in the light of the advice accepted by him. It is said that the defendant simply preferred his own view. That is not to paint the full picture. If this ground stood alone, it would not in my judgment prevail. But, as I have already indicated, it does not.

I reach this conclusion because I accept that the test must be a Wednesbury one. While the added consideration of human rights must be taken into account (I shall deal with the argument based on Article 8), there is ample authority which makes it clear that a judge must be astute not to substitute his own view for that of the decision maker unless the decision maker has failed to have regard to a material factor, has had regard to an immaterial factor or has reached a truly perverse decision. The defendant in this case was bound to act on the advice given to him by experts. The advice conflicted and so he was entitled to choose between them. The ACP, supported in some respects by other bodies, told him that the RCEP conclusions were not appropriate. The ACP, albeit it has maintained that there was no immediate need for further action and so was subjected to implicit criticism by the RCEP and so could be regarded as having an interest in supporting its advice, was an independent body. Thus, as I say, the refusal to follow the RCEP's recommendations would not by itself have amounted to an error of law”

Article 8 claim: The Judge held that the human rights claim added nothing to the arguments: if the secretary of state's approach complied with the Directive, any interference with the Claimant’s article 8 right would be in accordance with the law. There was no doubt, however, that the manner in which controls on crop spraying had been applied did not comply with the obligations imposed by the Directive. Local effects could not be measured nor could possible long-term effects on health be adequately assessed. There were defects in the secretary of state's approach which contravened the Directive. He had to reconsider what needed to be done, take steps to produce an adequate assessment of the risks to residents and consider whether the existing conditions of use were adequate. The need to inform residents of intended spraying and of the composition of the pesticides to be used was clear and had not been achieved by voluntary action. There was also a very strong case for a buffer zone.

In conclusion the Judge held that

“The result of this judgment is that the defendant must think again and reconsider what needs to be done. It is not for me to specify any particular action he needs to take. He must take steps to produce an adequate assessment of the risks to residents. In addition, he must carefully reconsider whether the existing conditions of use are adequate. The

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need to inform residents of intended spraying and of the composition of the pesticides to be used is I think clear. Voluntary action is not achieving this. Equally, I think there is a very strong case for a buffer zone, such as incidentally already exists to avoid spraying too close to watercourses in order to minimise the risk of pesticides entering groundwater.

I am inclined to the view that the appropriate remedy may be a declaration that the defendant is not acting in compliance with the Directive in the respects identified in this judgment and that he remedies his policy in the light of this judgment. But I will hear submissions on the precise terms of any order”

Breach of statutory duty by a public authority Friends of the Earth and Help the Aged have failed in seeking judicial review of the continuing failure to perform the duties imposed on Secretaries of State under sections 2(5)&(6) of the Warm Homes and Energy Conservation Act 2000. In ‘Friends of the Earth v Secretary of State for Business, Enterprise and Regulatory Reform’ ([2008] EWHC 2518 (Admin)), the applicants sought a declaration that the Secretaries of State for Environment, Food & Rural Affairs and for Business, Enterprise and Regulatory Reform were unlawfully failing to perform those duties. The purpose of the Act was, as set out in the preamble, to “require the Secretary of State to publish and implement a strategy for reducing fuel poverty; to require the setting of targets for the implementation of that strategy; and for connected purposes”. Section 2 provided:

“2(2) The strategy must –

(a) describe the households to which it applies, (b) specify a comprehensive package of measures for ensuring the efficient use of energy, such as the installation of appropriate equipment or insulation, (c) specify interim objectives to be achieved and target dates for achieving them, and (d) specify a target date for achieving the objective of ensuring that as far as reasonably practicable persons in England or Wales do not live in fuel poverty.

… 2(5) The appropriate authority shall take such steps as are in its opinion necessary to implement the strategy. 2(6) The appropriate authority shall –

(a) from time to time assess the impact of steps taken under subsection (5) and the progress made in achieving the objectives and meeting the target dates, (b) make any revision of the strategy which the authority considers appropriate in consequence of the assessment, (c) from time to time publish reports on such assessments.”

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It was accepted that a Strategy had been published which complied with the requirements of the Act, but the claim was on an alleged failure to implement this, in breach of statutory duties. A number of initiatives designed to tackle fuel poverty had been introduced, but the claimants argued that measures had not been introduced which would achieve the targets set in the Strategy. The Government submitted that it had been taking all reasonably practicable measures, but that it would not be reasonably practicable to take all of the measures which would be required to eradicate fuel poverty as measures might not be cost effective and resources may not be available to pay for them, given other spending commitments. McCombe J found that primary obligation, arising under section 2, was to prepare and publish the strategy setting out the government’s policies for ensuring that so far as reasonably practicable persons did not live in fuel poverty. A few mandatory contents of the Strategy appeared in section 2(2), including the identification of interim and final targets. Otherwise, the contents of it were left to the discretion of the Secretary of State. The obligation then followed for the Secretary of State to take such steps as were in his opinion necessary to implement the Strategy. The Strategy was a lengthy document, couched in the language of policy. However, the statutory obligation was to take the steps that the Secretary of State considered necessary to implement those policies. McCombe J considered that the juxtaposition of policy and legal duty in the Act posed difficulties in the task of statutory construction, but that the obligation on the government was to take the steps considered necessary to implement the strategy. Where the strategy required the government as far as reasonably practicable to seek an end to fuel poverty by certain dates, the government had to consider what steps were “reasonably practicable” to meet those objectives. Parliament would have taken as axiomatic that the pressures on budgets were intense and that the government would have to take the necessary steps in the context of other pressing needs for funds, and could not have intended that, whatever the expense, so long as not disproportionate to the benefit, the government should be obliged to expend whatever funds might be necessary to eliminate fuel poverty in priority to all other commitments. The statutory duty was to make efforts to implement the Strategy, but Parliament had not imposed a statutory duty to achieve the desired results whatever the cost. Without a rationality challenge or a demonstrated failure to implement an identifiable part of the strategy's provisions, it was not open to the court to review the policy decisions of the Secretaries of State as to the way they should go about implementing the Strategy. It was open to the government to have regard to its overall budget and the other calls on its resources in deciding what steps to take in the implementation of the Strategy, including its requirement that efforts should be made to achieve the targets as far as reasonably practicable. The penalty, if any, for failure to achieve the desired results of the Strategy because of errors in policy making should be political rather than legal. That conclusion did not ignore the provisions of s. 3 of the Act, which provided that expenses under and attributable to the Act would be paid out of money provided by Parliament. It was clear that the duty imposed by s. 2(5) of the Act was a duty imposed on the government as a whole. Evidence from DEFRA suggested that it might have been possible that the decision as to what steps were reasonably practicable might have been determined not by reference to the resources of government as a whole but merely by reference to the budgets of individual departments. If that was so then there

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might have been a potential breach of duty under the Act to that limited extent. However the evidence on that point was far from conclusive and was an insufficient basis for a finding of breach of statutory duty. The challenge sought to be made, in the guise of an allegation of breach of the duty under s. 2(5) was, in fact, a challenge to the making of policy, in particular in relation to the allocation of funds. The claim that the government had failed to implement a particular aspect of the Strategy had not been made out. Water pollution and unincorporated associations In ‘R v RL & JF’ ([2008] EWCA Crim 1970), the Court of Appeal delivered a judgment with major implications for the liability of members of unincorporated associations. The respondents were the chairman and treasurer of a golf club (the treasurer also being the chair of a ‘special building committee’ which oversaw work by contractors). Independent building contractors employed by the club carried out work on an oil storage tank at the club’s premises. An underground pipe was fractured during that work, which caused 1,500 litres of oil to escape and pollute a nearby watercourse. The Environment Agency prosecuted the respondents for causing the entry of polluting matter into controlled waters contrary to s.85 of the Water Resources Act 1991. This was despite the fact that the Agency accepted that neither of the respondents were personally culpable, and that there was nothing that either had done to make them criminally liable beyond being a member of the club which maintained the tank and pipe. The judge at first instance found in favour of the respondents, deciding that the golf club could have been prosecuted for the offence as an unincorporated association and that in the absence of any personal culpability, the two individual defendants/respondents could not be prosecuted. The Crown sought leave to appeal under s.58 of the Criminal Justice Act 2003. The basis for this was that it was not possible for the golf club to be the subject of the prosecution as the definition of a ‘person’ for the purposes of an offence under s.85 did not include an unincorporated association. The Water Resources Act 1991 did not contain a specific provision making such an association criminally responsible in its own name. In the absence of such a specific provision, the Crown argued that the ordinary common law principle that an unincorporated association was no more than a collective noun for it members had to prevail. The Court of Appeal allowed the appeal in part, Lord Justice Hughes finding that although several statutes did make specific provision for the criminal liability of unincorporated associations, those provisions varied so greatly that no settled policy could be discerned from them. It was impossible to conclude that there was a form of enactment which was to be expected if an unincorporated association was to be criminally liable, the absence of which signalled a contrary intention for the purposes of s.5 of the Interpretation Act 1978. The court found that prosecution of the club was permissible in law. The definition of ‘person’ in the Interpretation Act 1978 was of general application and to assert that a contrary intention appeared from the absence of a specific statutory provision amounted to depriving that definition of its generality. Accordingly, the definition of ‘person’ in the Interpretation Act 1978 applied and no

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contrary intention appeared in the 1991 Act. The trial judge had erred in ruling that the individual respondents could not be prosecuted. He had based that decision on s.217(1) of the Water Resources Act 1991 which provided for the officers of a body corporate to be criminally liable where an offence had been committed with their consent or connivance or was attributable to their neglect. The conclusion reached that Parliament could not have intended that the criminal liability of officers of an unincorporated association should be greater than that of their counterparts in a corporation could not be justified. The nature of an unincorporated association was such that all of its members remained jointly and severally liable for the association’s actions done with their authority. In the instant case all of the 900 members of the club were maintainers of the oil tank and all were guilty of the strict liability offence of causing the leak, and that liability was primary not vicarious. The correct position under s.85 was that a prosecution for the strict liability offence of causing water pollution could be brought, on the facts of the case, against either the club in its own name, or against individual members. It was for the Crown in any individual case to determine the defendant(s) whom it sought to prosecute. The court would interfere only in the very limited case of oppression involving abuse of process. Relevant considerations to take into account when determining who to prosecute would include the extent of the association’s stability and assets and the nature of the act or omission said to constitute the offence. Lord Justice Thomas used his discretion under the Criminal Justice Act 2003 not to order a retrial of the respondents, who were acquitted. The case may, of course, provide an incentive for some associations to convert to corporate bodies or otherwise restructure themselves to avoid or mitigate the potential criminal liability which might arise for individuals from everyday activities such as employing building contractors. Motorway impacts and council tax valuation The case of ‘Chilton-Merryweather (Listing Officer) v Hunt & Others’([2008] EWCA Civ 1025) concerned an appeal by the Listing Officer who appealed against four decisions of the Manchester North Valuation Tribunal in favour of the respondents, who had properties close to the M61 motorway. The appeals had been made pursuant to reg.32 of the Council Tax (Alteration of Lists and Appeals) Regulations 1993 (S.I. 1993/290), which permitted an individual council taxpayer to make a proposal that his premises should be put into a lower banding for the purpose of payment of Council Tax, on the basis that there had been a “material change”. The relevant value “list” was established on April 1, 1993, and there had been no general revision of the bands. Accordingly, any changes depended upon an individual being able to show that the provisions of the Local Government Finance Act 1992 enabling a change applied. The relevant section which dealt with alteration of the lists was s.24 , which provided by subs.(4):

”The regulations may include provision that no alteration shall be made of a valuation band shown in the list as applicable to any dwelling unless -- (a) since the valuation band was first shown in the list as applicable to the dwelling- ... (ii) there has been a material reduction in the value of the dwelling."

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In order to decide whether there had been a material reduction, subs.(10) provided:

”... ‘material reduction’, in relation to the value of a dwelling, means any reduction which is caused (in whole or in part) by the demolition of any part of the dwelling, any change in the physical state of the dwelling's locality or any adaptation of the dwelling to make it suitable for use by a physically disabled person.”

Although the M61 motorway existed and was in use on April 1, 1993, the respondents asserted that there had been a considerable increase in the volume of traffic using the motorway so that the noise and fumes created a much greater disturbance than had been the case in 1993. The impact on the value of their dwellings was submitted to be to such an extent as would justify change to a lower band than the one established in 1993. The respondents produced evidence as to the considerable increase in the noise and pollution levels, with decibel levels considerably above those which would be regarded as normally tolerable, and as to the effects of the proximity of the motorway on prices received for comparable properties in the area. The Tribunal decided that the increases in noise and pollution and their effect upon values was capable of falling within the expression “a change in the physical state of the dwellings’ locality” and therefore could properly be regarded as the basis for a change of banding, provided that the valuation as a result had changed. The appellant appealed on the basis that, as a matter of law, the alleged changes resulting from the increase in noise and pollution were not such as could fall within s.24(10). The Administrative Court dismissed the appeal, finding, the Tribunal had been correct to decide that the changes in question were within the meaning of s.24(10) and accordingly had been correct to decide in favour of the proposals. The Listing Officer then appealed to the Court of Appeal. Counsel for the Listing Officer submitted that the “physical” state could not include fluctuating matters such as traffic and its environmental consequences. The relevant provisions emphasised that the change in question was something which could be related to events occurring by reason of change in the fabric of the locality, rather than a process which was part of the use of the locality. The advocate to the court (appearing as the householders did not appear) submitted that traffic and its environmental consequences in terms of noise and pollution were physical phenomena and that it was absurd to distinguish between the existence of a nearby road and the traffic on it. Rix L.J. found that the Listing Officer was properly concerned only with the essential fabric and character of house and locality, but not with other matters which went to their enjoyment, use, occupation or activity, such as, the particular degree of traffic to be met on a particular date. Whereas it was common ground that the expression “physical state” could embrace traffic and its physical consequences such as noise and pollution, in context the emphasis on “physical” state was intended to distinguish matters of physical fabric from matters of use, activity, enjoyment or occupation. This approach was supported the wording of the 1992 Act and the associated regulations. It was also supported by policy considerations. There might be a range of situations which were

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difficult to evaluate such as the case where the character of a road itself changed, or where a road was built and left unused and then at a later date was opened, or where a quarry or factory had ceased operation and then at a later date started up again. Such cases might possibly raise a question not merely of use or occupation, but of the character of road, quarry or factory concerned and hence possibly of the physical state of the locality, but should be left to the expertise of a valuation tribunal as ones where the facts would be capable of being brought within the statutory language. It appeared that the householders’ real cause for complaint was not so much of a material reduction as defined by the statute as that there had not, since 1993, been regular or any revaluations as might have been anticipated and/or that improvements to the motorway which have been promised and carried out on other stretches of the motorway had not been carried out in their vicinity. In the present case, however, the very different circumstance of merely a greater level of traffic (together with its environmental consequences) on a motorway which it was agreed had not in itself changed at all in its physical state throughout the relevant period was not capable of coming within the statutory language, and the valuation tribunal had therefore erred in accepting that it could.