West Law Report

Common Law Environmental Doctrines

Posted in Law 271 Environmental Law and Policy, nuisance by mrkooenglish on June 17, 2008

UC Berkeley Law 271
Environmental Law and Policy – Lecture 3


(1 hr 15 min)

Program page

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Breach in failure to meet pollution Convention

Posted in Environmental law, Times Law Report by mrkooenglish on June 11, 2008

From The TimesJune 10, 2008

Breach in failure to meet pollution Convention
Golden Fleece Maritime Inc and Another v ST Shipping and Transport Inc in the Court of Appeal
Court of Appeal

Published June 10, 2008

Golden Fleece Maritime Inc and Another v ST Shipping and Transport Inc

Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Longmore and Lord Justice Lawrence Collins

Judgment May 23, 2008

Owners of vessels which failed to comply with the Marine Pollution Convention, as warranted in the charterparty and were unable to carry to all specified ports the full range of petroleum products set out therein, were in breach of time charters.

The Court of Appeal so held, dismissing the appeal of shipowners, Golden Fleece Maritime Inc and Pontian Shipping SA, against the decision of Mr Justice Cooke ([2007] 1890 (Comm)) that they were liable in damages to the charterers, ST Shipping and Transport Inc, for breach of charter from the date when work ought to have been carried out to enable the vessels to comply with the amended Marine Pollution Convention.

Mr Gavin Kealey, QC and Mr Timothy Hill for the owners; Mr Nicholas Hamblen, QC and Mr Malcolm Jarvis for the charterers.

LORD JUSTICE LONGMORE said that since the 1970s the Inter-Governmental Maritime Consultative Organisation, since 1982 the International Maritime Organisation, had been concerned to minimise occurrences and consequences of pollution. Under its auspices, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 had introduced internationally recognised regulations covering the prevention of pollution of the marine environment by ships.

The parties to that Convention had gradually been requiring improvements of the design of tanker vessels. A requirement that segregated ballast tanks should be fitted alongside the vessel while oil was carried in the central tanks was introduced. Those vessels were called double-sided. The final step was to require the cargo tanks to be protected not only at the sides but also at the bottom, or double-hulled.

Amendments to the 1972 Convention to secure that end were adopted in 1992 and came into force in 1993 by regulation 13F of annex 1 to the Convention. They applied to existing ships 30 years after delivery to the original owner.

The International Maritime Organisation accelerated the phasing out of single-hulled tankers by adopting regulation H of annex 2 to the Convention to come into force on April 5, 2005. From that date only double-hulled vessels could carry fuel oil cargoes. There were, however, exemptions from that regime in regulations 13H(5), (6) and (7).

The charterparties in question were made on May 30, 2003, and August 10, 2004. Neither vessel was double-hulled. The parties treated them as double-sided although to a small extent they were not with the result that they did not meet the requirements of the exemption.

The critical question was whether the failure of the vessels to comply with the Convention’s new provisions for double-hulled vessels meant that the owners were in breach of charter after April 5, 2005.

The charters were on the Shelltime 4 form, a standard form of time charter. Its terms provided that the vessels were to be fit to carry dirty petroleum products such as fuel oil, they were to have on board certificates and documents required by the applicable law, and they were to comply with all applicable conventions, including specifically the amended Marine Pollution Convention.

The authorities established no principle of law that the terms of a time charter as to seaworthiness or fitness to carry the cargo related only to the vessel’s physical condition and could never extend to legal fitness to carry the cargo. It was all a question of fact and construction of the individual charterparties.

The wording of the clause requiring relevant documents to be on board was curious. To carry fuel oil the vessels needed, as from April 2005, an exemption under regulation 13H(5). It was a document required at a particular time. The opening words of the clause, however, looked to the date of the vessel’s delivery under the charter.

There was thus an inconsistency between the opening words and the words “required from time to time” in the body of the clause. Precedence should be given to the words in the body rather than those in the introducing phrase on the basis that the particular should prevail over the general. That would be enough to resolve the appeal in favour of the charterers.

The first two paragraphs of clause 52 led to the same conclusion. Clause 52 warranted that the vessel was eligible under applicable conventions, laws and regulations for trading to and from ports specified in the charterparty, and had on board all certificates and required documents. The warranty explicitly applied to the future and expressly referred to the Marine Pollution Convention as amended and extended.

Without the regulation 13H(5) exemption, the vessels did not comply with the Convention because they were designated fit to carry dirty petroleum products but could not do so unless they had the relevant exemption for double-sided vessels. Thus on any view there was a breach of clause 52 because the vessels were unable to obtain that exemption.

The Master of the Rolls and Lord Justice Lawrence Collins agreed.

Solicitors: Stephenson Harwood; Clyde & Co LLP.

Public nuisance claim

Posted in Environmental law, Public nuisance, Times Law Report by mrkooenglish on May 30, 2008

From The TimesMay 28, 2008

Public nuisance claim
Corby Group Litigation v Corby Borough Council in the Court of Appeal
Court of Appeal

Published May 28, 2008

Corby Group Litigation v Corby Borough Council

The House of Lords had neither expressly nor impliedly reversed the long-standing principle that damages for personal injury could be claimed in the tort of public nuisance.

The Court of Appeal (Lord Justice Ward, Lord Justice Dyson and Lady Justice Smith) so held when on May 8, 2008, dismissing an appeal by Corby Borough Council from the dismissal by Master Leslie, on June 25, 2007, of its interlocutory application to strike out a claim in public nuisance brought by 18 claimants, born with upper limb deformities.

They claimed, inter alia, damages for personal injury said to be referable to their mothers’ exposure to toxic materials during pregnancy, in the course of reclamation and decontamination of land in Corby.

LORD JUSTICE DYSON said the defendant had asserted that in light of dicta from the House of Lords in Hunter v Canary Wharf Ltd (The Times April 25, 1997; [1997] AC 655) and Transco plc v Stockport Metropolitan Borough Council (The Times November 20, 2003; [2004] 2 AC 1) a claim for damages for personal injury in public nuisance no longer lay.

However, those dicta were obiter since in the neither case was the claim based on public nuisance, nor was there a claim for personal injury.

UNITED UTILITIES WATER PLC v ENVIRONMENT AGENCY FOR ENGLAND & WALES

Last Updated: 7:01pm BST 24/10/2007

House of Lords
Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell, Lord Brown of Eaton-under-Heywood
October 17, 2007

Authorisations – Non-hazardous waste – Sewage – Sewerage undertakers – Waste disposal – Water treatment – Disposal of non-hazardous waste – Installations requiring permits – Sch. 1 Pollution Prevention and Control (England and Wales) Regulations 2000

FACTS

The appellant water and sewerage undertaker (U) appealed against a decision ([2006] EWCA Civ 633, [2006] Env LR 42) that it was required, pursuant to the Pollution Prevention and Control (England and Wales) Regulations 2000, to secure permits from the respondent agency in respect of three of its sewage treatment plants. The processes carried out at the three plants involved the partial treatment of non-hazardous waste water and amounted to physico-chemical and biological treatment within the meaning of Sch. 1 Part I s. 5. 3(c) to the Regulations. The waste water was reduced to sludge, thickened and digested, then sent by pipeline to a further processing plant, Shell Green. At Shell Green about a third of the sludge was disposed of either by incineration or by being sent for landfill, and two-thirds was recovered, mainly by being spread on agricultural land as fertiliser. The issue for determination was whether, for a permit to be required, the production and discarding of the end product had to take place within the same installation as its physico-chemical or biological treatment. U submitted that the treatment of non-hazardous waste at an installation that produced an intermediate product which was then transferred to another plant for final treatment and disposal did not fall within the definition, set out in Sch. 1 Part I s. 5. 3(c)(i) and (ii) to the Regulations, of activities requiring a permit.

ISSUE

Whether, for a permit to be required, the production and discarding of the end product had to take place within the same installation as its physico-chemical or biological treatment.

HELD (appeal dismissed)

The three plants did carry out activities requiring a permit. The purpose of the legislation was, among other things, to protect the environment against potential damage from operations involved in the disposal of non-hazardous waste, including physico-chemical or biological treatment. There was no rational explanation for any exclusion from the permit regime of treatment simply on the ground that the final product for discarding was produced elsewhere. A purposive construction of Sch. 1 Part I s. 5. 3 was required and its meaning had to be spelled out by looking at the product’s eventual destination when it was discarded. The wording of s. 5. 3(c)(i) and (ii) meant that the treatment had to form part of a process that resulted in a discarded rather than a recovered product, but did not stipulate where that should take place.

Lawrence West QC and Wendy Outhwaite (instructed by Addleshaw Goddard) for the appellants. David Hart QC and Angus McCullough (instructed by Environment Agency) for the respondents.

R (EDWARDS & ANR) v THE ENVIRONMENT AGENCY & OTHERS

Last updated: 8:21 PM BST 30/04/2008
House of Lords

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance

April 16, 2008

Administrative decision-making – Common law rights – Consultation – Directives Environmental impact assessments – Factories – Fuel – Implementation – Incineration – Integrated pollution prevention and control – Statutory interpretation Change to existing project – Duty of environment agency to make information available to public – Pollution Prevention and Control (England and Wales) Regulations 2000 – Reg. 11(2)(b) Pollution Prevention and Control (England and Wales) Regulations 2000 – Council Directive 96/61 1996 – Annex II Directive 85/337 on the Environmental Impact Assessment of Public and Private Projects 1985 – Annex I directive 85/337 on the Environmental Impact Assessment of Public and Private Projects 1985 – Directive 85/337 1985 – Art. 4(1) Directive 85/337 on the Environmental Impact Assessment of Public and Private Projects 1985 – Art. 2.10(b) Council Directive 96/61 1996 – Art. 1 Directive 85/337 on the Environmental Impact Assessment of Public and Private Projects 1985

FACTS

The appellants (E), residents living close to a cement works, appealed against a decision ([2006] EWCA Civ 877) that the respondent Agency had not been required to consider obtaining an environmental impact assessment in response to a proposal by the plant to burn waste tyres as partial substitute for the use of conventional fuel.

The cement works (R) had applied for a permit under the Pollution Prevention and Control (England and Wales) Regulations 2000 to replace a permit granted under earlier legislation. Part of its proposal had been to ask permission to replace some of the traditional fuel with shredded tyres and the Agency had accepted the proposal. E had applied for judicial review of the decision and the issue for determination had evolved within the proceedings to become a complaint that the Agency’s grant of the permit to R was vitiated by procedural irregularity because the Agency had not properly discharged its statutory obligation of public consultation before deciding whether or not R’s proposal would cause significant pollution within the meaning of reg. 11(2)(b). E maintained that

  1. (1) the Agency had been required by Council Directive 96/61 and by the Regulations to perform public consultation, as well as having a common law duty to do so, as a body exercising public functions;
  2. (2) the effect of R’s proposal had been to change the project from one falling within Directive 85/337 Annex II:(5):(b) to one falling within Annex I:(10) of the Directive so that an environmental impact assessment was a mandatory requirement.

ISSUES

(1) Whether the Agency had been required by Council Directive 96/61 and by the Regulations to perform public consultation, as well as having a common law duty to do so, as a body exercising public functions.

(2) Whether the effect of R’s proposal had been to change the project from one falling within Directive 85/337 Annex II:(5):(b) to one falling within Annex I:(10) of the Directive so that an environmental impact assessment was a mandatory requirement

HELD (appeal dismissed)

(1) A claim based on Council Directive 96/61 had to fail because the Directive made it clear that the duty to make information available to the public applied only to new installations or where there were substantial changes to an operation. There was no dispute that the plant was an existing installation and there was an unchallenged finding of fact that the only change in operation proposed by R’s application, namely the use of tyres, would not have “significant negative effects on human beings or the environment” within the meaning of art. 2.10(b) of the Directive. Nor had there been a breach of any express or implied terms of the Regulations, R (on the application of Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin), [2004] Env LR 29 approved.

The publicity requirements of the Regulations went further than Directive 96/61 because they applied to existing installations and required publication of formal supplementary inquiries and the information obtained in response to such inquiries. 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 enquiry. The courts below had been right to exercise their discretion against quashing the permit on the ground of procedural unfairness. Directive 96/61 specified what information should be made available to the public and the Regulations effected and extended those requirements. It was not for the courts to impose a broader duty. If the Agency had to disclose its internal working documents for further public consultation, there was no reason why the consultation process should ever come to an end.

(2) R’s proposal did not bring the project within the scope of Annex I of Directive 85/337, and therefore an environmental impact assessment had not been necessary. The definition of “project” in art. 1 of that Directive appeared to contemplate the construction of something new, not a change to an existing installation, Commission of the European Communities v Italy (C486/04) (2007) Env LR D10 ECJ considered. Changes to existing projects were dealt with elsewhere in the Directive. The Annexes, generally, described projects by reference to their purpose rather than the use to which they might be put, and the size of an installation was described by reference to its capacity rather than the amount of waste incinerated. The paragraphs of Directive 85/337 cited by E were concerned with the creation of an installation of a particular size for a particular purpose rather than with the quantity of waste from time to time incinerated.

David Wolfe, Tessa Hetherington (instructed by Richard Buxton, Cambridge) for the appellants. David Elvin QC and Kassie Smith (instructed by in-house solicitor, Treasury Solicitor) for the respondents. Stephen Tromans and Colin Thomann (instructed by in-house solicitor) for the interveners.