West Law Report

KHAN v COMMISSIONER OF POLICE OF THE METROPOLIS

Last Updated: 7:17PM BST 11/06/2008
Court of Appeal (Civil Division) Pill, May and Moses LJJ June 6, 2008
Police powers and duties – Reasonable belief – Right to respect for private and family life – Search and seizure – Statutory interpretation Reasonable belief that premises owned or occupied by arrested person – Lawfulness of search – Literal interpretation of s. 18(1) Police and Criminal Evidence Act 1984 – S. 18(1) Police and Criminal Evidence Act 1984 – s. 32 Police and Criminal Evidence Act 1984 s. 8 Police and Criminal Evidence Act 1984 – Serious Organised Crime and Police Act 2005 – s. 3(1) Human Rights Act 1998 European Convention on Human Rights 1950 Art. 8 European Convention on Human Rights 1950

FACTS

The appellant police commissioner appealed against a decision of the judge that a police search of the home of the respondent (K) had not been conducted lawfully. Following his arrest, a suspect (M) had given false details to the police, including K’s home address as his own. Purporting to act under the Police and Criminal Evidence Act 1984 s. 18(1), police officers entered and searched K’s home in the middle of the night despite K’s objections and the presence of members of his family. Nothing relevant to the investigation of M was found. K issued proceedings against the commissioner. The judge found that the requirements of s. 18 of the Act had not been met, as there was no evidence that M had ever owned or occupied K’s premises, so that the police search had not been lawful. K was awarded damages for trespass. The commissioner contended that s. 18(1) of the Act should be interpreted to make a search lawful where a police officer had a reasonable belief that the premises had been owned or occupied by the arrested person. It was submitted that a literal interpretation of s. 18 was unworkable, as the police could never be sure of a property’s ownership or occupation when the decision to search it needed to be made.

ISSUE

Whether the police search of K’s home had not been conducted lawfully.

HELD (appeal dismissed)

There was no justification for reading s. 18 of the Act otherwise than in accordance with its plain words. Premises had to be occupied or controlled by the person under arrest if a search under s. 18 was to be lawful, and the absence of those requirements was not unimportant or irrelevant. Other powers of entry were available to police under s. 32 of the Act, or by obtaining a search warrant under s. 8 of the Act. Both of those sections referred to the necessity for “reasonable belief”, and its omission from s. 18(1) had not been accidental. Further, Parliament had revised the operation of powers under the Act and made certain amendments to it by the Serious Organised Crime and Police Act 2005, but it had not taken the opportunity of qualifying the requirements of occupation and control in s. 18(1). Further, under the Human Rights Act 1998 s. 3(1), the 1984 Act had to be read in a way that was compatible with an individual’s rights under the European Convention on Human Rights 1950, and giving the words in s. 18(1) of the Act their ordinary meaning accorded with the right to respect for private and family life under art. 8 of the Convention. The judge had, accordingly, been correct in his conclusion.

Rajeer Shetty (instructed by Bircham Dyson Bell) for the appellant. The respondent appeared in person.

CPS v JENNINGS

(See also Times law report: Making confiscation orders)

Last Updated: 11:26AM BST 22/05/2008
House of Lords

Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

May 14, 2008 (Filed: May 22, 2008)

Benefit from criminal conduct – Conspiracy to defraud – Control – Restraint orders – Statutory interpretation – Meaning of “obtain” in s. 71(4) Criminal Justice Act 1988

FACTS

The appellant (J) appealed against the dismissal ([2005] EWCA Civ 746, [2006] 1 WLR 182) of his appeal against a refusal to discharge a restraint order made against him without notice under the Criminal Justice Act 1988 s. 77(1). The restraint order had been made while J was awaiting trial with three others on a charge of conspiracy to defraud. It prohibited him from removing any of his assets from England and Wales and disposing of or diminishing the value of any of his assets. The particulars of conspiracy related to a company that had received administration fees from potential borrowers for loans which had never been made. The prosecution case was that J had been at the centre of the conspiracy, although he appeared to be no more than an employee, and that he had benefited by more than £584,000 for the purposes of s. 71(4) of the Act, since that was the amount of money obtained by the conspiracy. J’s appeal against the restraint order had been argued while the criminal trial was in progress, and the judgment of the Court of Appeal had been handed down after J had been convicted and sentenced. The Court of Appeal had concluded that the word “obtain” in s. 71(4) of the Act did not mean “retain” or “keep”, but contemplated that the defendant in question should have been instrumental in getting the property out of the crime and that his acts must have been a cause of that being done. It had found that there was no separate requirement that the defendant must be shown to have “control” over the property. J submitted that he had “obtained” his salary and a few minor payments, the total of which amounted to a maximum of £50,000. He maintained that the application for a restraint order had illegitimately sought to pierce the corporate veil of the company through which J and his co-accused had operated. The CPS contended that J had “obtained” property amounting to over £584,000 before adjustment for inflation.

ISSUE

Whether on the facts, there was sufficient material to support the making of the restraint order.

HELD (appeal dismissed)

(1) The meaning of s. 71(4) was, in substance, the same as the equivalent provisions of the drug trafficking legislation. It was to be remembered that the object of the legislation was to deprive a defendant of the product of his crime or equivalent, not to operate by way of fine. The rationale of the confiscation regime was that a defendant was deprived of what he had gained. If he was deprived of what he had never obtained, that was a fine. That must ordinarily mean that in order to be so deprived, a defendant would have to have obtained property so as to own it, whether alone or jointly, which would ordinarily connote a power of disposition or control. The finding of the court below was not entirely accurate because a person’s acts might contribute significantly to property being obtained without his obtaining it. The words “a person benefits from an offence if he obtains property as a result of or in connection with its commission” was to be read as meaning “obtained by him”. The broad thrust of J’s criticism of the Court of Appeal’s construction of s. 71(4) was accepted, but nevertheless, there was clearly sufficient material to support the making of the restraint order.

(2) Ordinarily, acts done in the name of and on behalf of a limited company were treated in law as acts of the company and not of the individuals who performed them. In the instant case, where the acts done by J and his associate had led to the conviction of one and a guilty plea by the other, the veil of incorporation had been not so much pierced as rudely torn away. As the crux of J’s case was that he was not the prime mover in the company, it was a case that could only be explored by examining the internal management of the company.

Anthony Elleray QC and Scott Redpath (instructed by David Hanman Associates, Greater Manchester) for the appellants. Andrew Mitchell QC and Stephen Hellman (instructed by in-house solicitor) for the respondent.

Making confiscation orders

(See also Westlaw report: CPS v Jennings)

From The TimesMay 19, 2008

Making confiscation orders
House of Lords

Published May 19, 2008

Jennings v Crown Prosecution Service

Before Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches May 14, 2008

Confiscation orders, or restraint of property orders pending the making of such orders, were to be made in respect of property which the person had actually obtained, not that he had merely helped others to obtain.

The House of Lords so held in dismissing an appeal by Paul Ian Jennings, from the order of the Court of Appeal (Lord Justice Laws, Lord Justice Longmore and Lord Justice Lloyd) (The Times July 12, 2005; [2006] 1 WLR 182) upholding the refusal by Mr Justice Leveson ([2004] EWHC 3028 (Admin)) to set aside a restraint order made against him under section 77(1) of the Criminal Justice Act 1988.

Mr Anthony Elleray, QC and Mr Scott Redpath for Jennings; Mr Andrew Mitchell, QC and Mr Stephen Hellman for the Crown.

LORD BINGHAM, delivering the opinion of the committee, said that Lord Justice Laws had said (paragraph 38), that “obtains” in section 71(4) of the 1988 Act meant that the defendant “should have contributed, to a nontrivial … extent, to the getting of the property.”

However, as explained in R v May (The Times May 15, 2008), the object of the legislation was to deprive the defendant of the product of his crime, not to operate by way of fine. He was not to be deprived of what he had never obtained.

The formulation of Lord Justice Laws was not entirely accurate. Section 71(4) had to be read as meaning “obtained by him”. However, there had clearly been sufficient material to support the making of a restraint order against the defendant.

Solicitors: Hanman Associates, Manchester; Crown Prosecution Service, Special Crime Division.

What does it mean “during”?

Posted in Statutory interpretation by mrkooenglish on May 20, 2008

UNITED STATES v. RESSAM

certiorari to the united states court of appeals for the ninth circuit

No. 07-455. Argued March 25, 2008–Decided May 19, 2008

After respondent gave false information on his customs form while attempting to enter the United States, a search of his car revealed explosives that he intended to detonate in this country. He was convicted of, inter alia, (1) feloniously making a false statement to a customs official in violation of 18 U. S. C. §1001, and (2) “carr[ying] an explosive during the commission of” that felony in violation of §844(h)(2). The Ninth Circuit set aside the latter conviction because it read “during” in §844(h)(2) to include a requirement that the explosive be carried “in relation to” the underlying felony.

Held: Since respondent was carrying explosives when he violated §1001, he was carrying them “during” the commission of that felony. The most natural reading of §844(h)(2) provides a sufficient basis for reversal. It is undisputed that the items in respondent’s car were “explosives,” and that he was “carr[ying]” those explosives when he knowingly made false statements to a customs official in violation of §1001. Dictionary definitions need not be consulted to arrive at the conclusion that he engaged in §844(h)(2)’s precise conduct. “[D]uring” denotes a temporal link. Because his carrying of explosives was contemporaneous with his §1001 violation, he carried them “during” that violation. The statute’s history further supports the conclusion that Congress did not intend a relational requirement in §844(h) as presently written. Pp. 2-6

474 F. 3d 597, reversed.

Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Ginsburg, and Alito, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part I. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined. Breyer, J., filed a dissenting opinion.

RAMBLERS’ ASSOCIATION v COVENTRY CC

Posted in Highways Act, Statutory interpretation, Westlaw Reports by mrkooenglish on May 15, 2008

Last Updated: 11:46PM BST 14/05/2008
Queen’s Bench Division (Admin) Michael Supperstone QC April 17, 2008
Queen’s Bench Division (Admin)

Michael Supperstone QC

April 17, 2008

Footpaths – local authorities’ powers and duties – orders – validity of gating orders – meaning of “persistent” in s. 129a(3)(b) Highways act 1980 – s. 129a(3) Highways Act 1980 – s. 129a Highways act 1980 – s. 129a(3)(b) Highways Act 1980 – s. 129a(3)(c) Highways act 1980 – s. 111 Local Government Act 1972

FACTS

The applicant association (R) applied under the Highways Act 1980 s. 129D to quash two gating orders made by the defendant local authority in respect of a public footpath and sought a declaration that the local authority had no power to install barriers across the footpath.

When making the first gating order, the local authority had relied on a report that detailed 10 crimes or incidents of anti-social behaviour that could be directly attributed to the presence of the footpath. The report also noted that the police supported the making of the gating order on the grounds that the footpath was being used for anti-social behaviour and was a crime generator.

The first gating order made by the local authority was amended by the second gating order so as to implement a blanket ban on the use of the footpath save for certain exempted users.

R contended that the local authority (1) could not have been satisfied on the evidence presented in the report that the prerequisite conditions under s. 129A(3) of the 1980 Act for the making of a gating order had been fulfilled; (2) had erred in exercising its powers to make gating orders as it ought to have imposed restrictions no greater than appeared reasonably necessary to achieve the reduction of crime and anti-social behaviour; (3) had no power to install barriers across the footpath.

ISSUES

(1) Whether the local authority could not have been satisfied on the evidence presented in the report that the prerequisite conditions under s. 129A(3) for the making of a gating order had been fulfilled.

(2) Whether the local authority had erred in exercising its powers to make gating orders.

(3) Whether the local authority had no power to install barriers across the footpath.

HELD (application refused)

(1) When considering whether the existence of a highway was facilitating the persistent commission of criminal offences or anti-social behaviour a local authority ought to consider the position as at the date of the making of the order.

The word “persistent” in s. 129A(3)(b) of the 1980 Act was an ordinary English word, commonly understood to mean “continuing or recurring; prolonged”, that did not require further definition. There was sufficient evidence of criminal offences or anti-social behaviour facilitated by the existence of the footpath to justify the making of an order.

(2) The local authority had not erred in exercising its powers to make the gating orders. Under s. 129A(3)(c) of the 1980 Act the test to be applied was whether it was “expedient to make a gating order” and it was not proper to import into that test a requirement of reasonable necessity.

What was expedient depended on all the circumstances. Relevant considerations for a local authority to have regard to when considering whether to impose a blanket restriction included available resources and the utility, cost and practicality of a lesser restriction.

(3) The first gating order was defective in not expressly stating that it authorised the installation of barriers for the purpose of enforcing the restriction provided for in the order.

However, it was clear that the first gating order intended the installation of barriers and the local authority had the power by virtue of the Local Government Act 1972 s. 111 to provide the necessary authorisation for the barriers by means of the second gating order.

Ross Crail (instructed by Zermansky & Partners, Leeds) for the claimant. Simon Bird (instructed by in-house solicitor) for the defendant.

HOME SECRETARY v BRITISH UNION FOR THE ABOLITION OF VIVISECTION & ANR

Last Updated: 11:45PM BST 14/05/2008
Queen’s Bench Division Eady J April 25, 2008
Queen’s Bench Division

Eady J

April 25, 2008

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Animal research organisations – Animal welfare – Confidential information – Data protection – Privacy – Public interest – Requests for information – Vivisection – s. 24 Animals (Scientific Procedures) Act 1986 – Duty of confidence – Misuse of private information – Breach of confidence – Animals (Scientific Procedures) Act 1986 – S. 24 Animals (Scientific Procedures) Act 1986 – s. 41 Freedom of Information Act 2000 – s. 44 Freedom of Information Act 2000 – Freedom of Information Act 2000 – Art. 8 European Convention on Human Rights 1950 – Art. 10 European Convention on Human Rights 1950

FACTS

The appellant secretary of state appealed, pursuant to the Freedom of Information Act 2000 s. 59, against a decision of the Information Tribunal. The breeding and supply of animals for scientific procedures was governed by the Animals (Scientific Procedures) Act 1986 and the Home Office was responsible for related regulation.

Applications to use animals for research had to be submitted to its Animal Scientific Procedures Division for scrutiny before a decision to grant a project licence could be made. Statutory requirements meant that material that was commercially sensitive or useful to competitors and details of locations that could be sensitive for security reasons might have to be included.

The division responsible introduced a policy that tried to balance confidentiality with freedom of information requirements: applicants were asked to submit abstracts of their projects for the Home Office website.

Shortly after the new policy began, the first respondent (B) sought, under the 2000 Act, further information on certain applications. Consequently, information extra to the abstracts that was not exempt under the 2000 Act was provided. B submitted to the tribunal that under s. 24 of the 1986 Act, a penal provision, any information qualifying as “given in confidence” had to be such that it would be an actionable breach for it to be revealed in response to a request under the 2000 Act.

The tribunal upheld that view, interpreting s. 24 as having a similar meaning to s. 41 of the 2000 Act and directing the Home Office to reconsider its interpretation of s. 44 of the 2000 Act. The main issue in the instant case was how far information needed to be made available to the public, given that it had a legitimate interest in knowing what was taking place with regard to animal research, and given the right to make requests under the 2000 Act.

ISSUE

How far information needed to be made available to the public.

HELD (appeal allowed)

(1) The tribunal had relied on the principles of Coco v AN Clark (Engineers) Ltd [1968] FSR 415 Ch D, which provided an exclusive definition such that, whenever “in confidence” appeared in a statute, the legislature must have had those principles in mind. That was not necessarily the case and much depended on context.

The tribunal also read the notion of “public interest” into s. 24 of the 1986 Act, imposing an onerous obligation to weigh up its existence in every case of prima facie confidentiality. The modern law of confidence was wider than the principles applying where an equitable duty of confidence arose, or where there were commercial secrets; it could also arise by express or implied agreement, and presumably under a statutory duty, and there was also a distinction between “old-fashioned breach of confidence” and the modern tort of “misuse of private information”, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 and McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73 considered.

It was important in the instant case to remember the need to look at the jurisprudence of the European Convention on Human Rights 1950 art. 8 and art. 10. The tribunal had not addressed those developments and so had proceeded on an incomplete legal basis.

(2) There was tension between s. 24 of the 1986 Act and the aim of greater public access to information that underlay the 2000 Act. It was clear that the government deliberately retained s. 24 of the 1986 Act when repealing provisions before the 2000 Act, and did so as the scientific community had been concerned about confidentiality if it was repealed.

Thus, the court should probably assume that s. 24 was included to provide additional or parallel protection to that in s. 41 of the 2000 Act and its effect should not be diluted. The court should not assume that there was no such intention.

Parliamentary materials gave no answer in the instant case, let alone one that pointed to the tribunal’s interpretation, and the tribunal had erred in concluding that the history of s. 24 of the 1986 Act lent it support.

(3) The instant court’s interpretation was based on the statutory wording, its context, the modern law of confidence and the arguments of the parties.

Accordingly, the information sought by B was obtained by the Home Office division in the exercise of its functions under the 1986 Act; the relevant official reasonably believed that it had been “given in confidence” at the time given; the disclosure sought from the Home Office would not be for the purpose of exercising its functions under the 1986 Act; the terms of s. 24 of the 1986 Act as it stood meant that disclosure was prohibited and would constitute a criminal offence; and the exemption in s. 44 of the 2000 Act applied to the information sought.

Karen Steyn (instructed by Treasury Solicitor). Daniel Alexander QC (instructed by David Thomas) for the first respondent. Akhlaq Choudhury (instructed by Geraldine Dersley).

R (M) v HM TREASURY & OTHERS

Last updated: 7:18 PM BST 07/05/2008
House of Lords

Lord Bingham of Cornhill, Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

April 30, 2008

Benefits – Licences – Possession for terrorist purposes – Regulations – Spouses – Statutory interpretation – Terrorists – Benefits payments to spouses of listed persons Meaning of “for the benefit of” in Art. 2.2 Regulation 881/2002 – Art. 2a(1)(a) Regulation 881/2002 – Art. 2.2 Regulation 881/2002 – Art. 2.3 Regulation 881/2002

FACTS

The court was required to consider the proper interpretation of Regulation 881/2002 art. 2.2. The issue had arisen in connection with the payment of social security benefits to the spouses of persons and groups within the Taliban and al-Qa’ida network who were named in a list drawn up by the Sanctions Committee of the United Nations Security Council. It was not in dispute that a listed person would require a licence from HM Treasury for payment of funds to him, and that a family member of a listed person, such as a wife for example, would not be entitled without such a licence to make funds available to her husband. The question was whether a licence was necessary to enable social security benefits to be paid to the wife herself. The Treasury submitted that a licence was necessary because money spent by the wife on the running of the family household would be “for the benefit” of the husband within the meaning of art. 2.2 of the Regulation and that it had a duty to ensure that none of the benefit money paid to a wife was spent for purposes that might benefit the husband outside of the scope of art. 2a(1)(a) of the Regulation. It maintained that in order to police that restriction, the wife should have her benefits paid into a bank account, from which she could only draw up to £10 in cash for each member of the household and that she must send a monthly account to the Treasury detailing her expenditure and enclosing receipts.

ISSUE

The proper interpretation of Regulation 881/2002 art. 2.2.

HELD (Question referred to ECJ)

(1) The intrusive regime described by the Treasury was not required by art. 2.2 of the Regulation. It produced a disproportionate and oppressive result. The licence conditions were “to provide safeguards against the risk of these funds being diverted to terrorism” and it was hard to see how the expenditure of money on domestic expenses, such as food, from which a listed person derived a benefit in kind, could create any risk that the listed person may divert the funds to terrorism. Also, the broad construction given by the Treasury to the words “for the benefit of” produced an anomalous discrepancy with art. 2.3, and there was accordingly no limit to the non-financial economic resources that a wife may provide to a husband provided that they did not enable him to obtain funds, goods or services. It was likely that the words “made available…. for the benefit of” in art. 2.2 of the Regulation were intended to mean a benefit made available to the listed person that he could use for terrorist purposes. In the case of a family living on state benefits, which were carefully calibrated to provide them with no more than they needed to live on, it was wholly unrealistic to assume that anyone living with a listed person was likely to make any funds she received available to the listed person for the purposes of terrorism.

(2) A question was referred to the ECJ, namely whether payments of money to persons other than the listed person were required to be licensed on the ground that some of their expenditure of that money would be for the benefit of the listed person. That question involved interpreting the words “for the benefit of” in art. 2.2 to determine whether they had a wide meaning that covered any application of money from which a listed person derived some benefit, or whether they applied only to cases in which funds, financial assets or economic resources were “made available” for his benefit, so that he was in a position to choose how to use them.

Rabinder Singh QC and Simon Cox (instructed by Birnberg Pierce & Partners) for the appellants. Jonathan Swift and Cecilia Ivimy (instructed by Treasury Solicitors) for the respondents.

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.