Environmental Law for Facilities Managers

Mr James PongMr Francis Yeung

Environmental law – civil or criminal in nature

Nuisance is always a balancing exercise“One man’s meat may be another man’s poison”“Give and take”“Live and let live”Public nuisance or private nuisance ?

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

Public nuisance

Differences between Civil and Criminal Law

Civil Criminal• Between 2 individuals • Between the State and an individual

• Damages (compensation) - $$ and/or injunction

• Fines (penalty) and/or imprisonment and criminal record

• Burden of proof on the plaintiff • Burden of proof on the Prosecution

• Standard of proof is on a balance of probabilities

• Standard of proof is beyond reasonable doubts

• Ingredients : tort of nuisance • Ingredients of the offence : mensrea and actus reus (actus non facitreum nisi mens sit reus)

• Part of the legal cost might be borne by the complainant (the aggrieved person)

• No legal cost for the complainant

Environmental Legislation in Hong Kong (enforced by EPD)

Air Pollution Control Ordinance, Cap. 311Noise Control Ordinance, Cap. 400Water Pollution Control Ordinance, Cap. 358Waste Disposal Ordinance, Cap. 354Environmental Impact Assessment Ordinance, Cap. 499Dumping at Sea Ordinance, Cap. 466Ozone Layer Protection Ordinance, Cap. 403Hazardous Chemicals Control Ordinance, Cap. 595Product Eco-responsibility Ordinance, Cap. 603

Other Environmental Legislation in Hong Kong

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

Strict Liability

Gammon (HK) Ltd & Others v AG

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

Example of Strict Liability

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

How “Strict” is Strict Liability?

R v Winson (1969)The person on whom a duty is thrown is responsible, whether he has delegated or whether he has acted through a servant A man cannot get out of the responsibilities which have been put on him by delegating those responsibilities to another.

Mousell v London and North-Western (1917)The principal is liable if the act is in fact done by his servants

Liability of Main-Contractors (Property Management Company)

Its liability is confirmed in HKSAR v Paul Y ITC (1998) :

Section 4(2) of the Noise Control Ordinance -Noise from domestic premises and Public Places

…… knowingly permits or suffers noise which is a source of annoyance to any person …....

section 6(1) of the Noise Control Ordinance -Noise from Construction Sites

…… uses, or causes or permits to be used, any powered mechanical equipment …...

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

Liability of Main-Contractors (Property Management Company)

(a) The main-contractor has the same responsibility as if it has done the work itself and cannot escape liability by delegating work to others

(b) The main-contractor causes the work done by his sub-contractor.

Liability of Main-Contractors (Property Management Company)

Appeal against abatement notice – civil or criminal in nature ?

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

Main Areas of Concern

Pollution Issues

Pollution Issues

Wastewater

Sources of Foulwater

Sources of Stormwater

Discharge Points

Common Malpractices

Impacts of Malpractices

Water Pollution Control

Offences (s.9 Water Pollution Control Ordinance):Discharge other than domestic sewage into a communal foul sewerDischarge other than unpolluted water into a communal stormwater drain

Discharge licence

Contravention 1st offence 2nd offence continuing

Without licence (s.9)

$200,000 $400,000 $10,000/day

With licence (s.17B)

$200,000 + 6 months

Drainage System

Manhole Covers

Manhole Covers

Do’s and Don’ts

Good Practices

Regular maintenanceKeep proper recordUse right manhole coverLabel different drainage systems (color coding)

Refuse Collection Problems

Common Malpractice

Common Malpractice

Common Malpractice

Common Malpractice

Common Malpractice

Good Practices

Good Practices

Renovation Waste

Flytipping

Flytipping Control

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

Reduce Waste

Construction Waste Charges

Control Measures

Establish house rulesSet up a registration systemRemove waste immediatelyDesignate an area for temporary storageUse wheeled trolley with lid

Waste Skip

Sources Separation

Waste Recycling

Classification of NoiseClassification of Noise

Neighbourhood noiseConstruction noiseIndustrial or commercial premises

Neighbourhood Noise

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

Neighbourhood Noise

S.5 NCOOffence: any person who at any time plays any musical instrument; use any loud-speaker; plays any game; carries on a trade; operates any air-conditioner; keeps any animal or bird, the noise of which is a source of annoyance to any personContravention: $10,000

Management

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

Renovation Noise

Restricted Hours

Construction Noise Control

S.6 NCOUse powered mechanical equipment eg electric drillCarry out prescribed construction work: formwork, scaffolding; handling of rubble, wooden boards, steel bars, wood; hammeringConstruction Noise PermitContravention:$100,000 1st offence$200,000 2nd offence$20,000/day if continuing

Control Measures

Establish house rulesSet up a registration system to control entry and working hours of workersRegular inspection of the worksWork in mutually acceptable hoursPost notices to inform the affected persons in advanceUse silent equipment

Industrial or Commercial Noise

Enforcement of Control

Noise AssessmentNoise Abatement Notice (s.13 NCO)Compliance CheckNon-compliance:$100,000 1st offence$200,000 2nd offence$20,000/day if continuing

Ventilation System

Pump Room

Renovation Emissions

Air Pollution Abatement Notice

S.10 APCOEmission of air pollutantsRequire the recipient to cease, reduce or abate emissionNon-compliance:$100,000 1st offence$200,000 + 6 months 2nd offence$20,000/day if continuing

Construction Dust Regulation

Construction works to be carried out in accordance with control requirements specified in the RegulationNotifiable work: demolition or construction of buildingRegulatory work: renovation on external wall or roof; road opening or resurfacing; slope stabilization; handling of dusty materials; drilling, cutting or polishing

Contravention 1st Offence 2nd Offence Continuing

Notifiable Work

$50,000 $100,000+ 3 months

$10,000/day

Regulatory Work

$25,000 $50,000 $5,000/day

Odour Control Measures

Dust Preventive Measures

Restaurant Emissions

Cooking fume

Dark smoke from chimney

Installation Regulation

Approval required if consumed >25 L/hr liquid fuel eg diesel35 kg/hr solid fuel eg coal, charcoal, wood1,150 MJ/hr gaseous fuelContravension:$50,000 + $500/day if continuing

Statutory Notice

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

Smoke Regulation

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

Cooking Fume Control

Install and maintain hydrovent, air washers, electrostatic precipitators, activated carbon filtersLocate the emission points away from the affected personsReduce cooking emissions

Hydrovent

Air Washer

Chimney

Dark Smoke Control

Regular repair and maintenance of furnacesUse low sulphur fuel, town gas or electricity

Generator

Fuel Restriction Regulation

Amended in October 2008Use liquid fuel with sulphur content < 0.005% by weightMaintain good fuel purchasing recordsEPD officers to collect fuel samples during inspection

Thank You