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In advising Acorn Property Developments’ and the directors Dave and Katie, it is necessary to examine the law relating to water pollution, waste management, planning permission, conservation and biodiversity. Furthermore, exploring any issues relating to nuisance, flooding, fines and sanctions.
It must be established whether a river and ditch which feeds into a river can be classified as controlled waters. Sections 104 of the Water Resources Act 1991 lists controlled waters as all surface waters, coastal waters and ground waters. This includes rivers, canals, lakes, ground waters, estuaries and coastal waters of three nautical miles from the shore. In Environment Agency v Brock 1998 it was held that water that leaked from a ditch could fall into the category of a controlled water providing it connected to and drained into a controlled water. Therefore, it is clear a river will fall into the category of controlled waters even if it has leaked from a ditch to a river.
The next issue is whether a water discharge has occurred? Water discharge activities are listed under Schedule 21 of the Environmental Permitting Regulations 2010 and the relevant provision is Regulation 38 section 3(1)(A)(i) Discharging poisons, noxious or polluting matter into inland fresh waters, coastal waters or relevant territorial waters. Dave has caused or knowingly permitted the positive act of allowing the pollution matter to leak in to the rivers, thus satisfying the criteria of a water discharge activity. There is no statutory definition of the word pollute but the court concluded in R v Dovermoss that ‘pollute’ should be given its ordinary dictionary meaning to “make physically impure, foul or filthy; to dirty, stain or taint” It’s clear from this definition that ‘sewage’ will be classified as polluting matter, although a small quantity poured into a large watercourse may not make it impure, foul or filthy and will be a question for the Jury. In the case of NRA v Egger the court concluded that pollution is any matter or substances which are “capable of damaging a rivers usefulness.” The destruction of otter habitats constitutes damage of the rivers usefulness because the court stated that damage can related to the harm of animals, or other life in the river. Also, the case of Alphacell v Woodward 1972 established ‘causing’ to be an offence of strict liability. Meaning that a defendant would be criminally liable for committing a positive act regardless of their Intention or carelessness. The positive act in this scenario is Dave accidentally damaging the underground pipe and the buttresses. I would advise APD to have committed a water discharge offences because it is an offence of strict lability and proof of physical harm is not necessary, the capacity to pollute alone is sufficient.
The next issue to is whether the water discharge activities require an environmental permit for the purposes of regulation 12(1)(B). There is no evidence to suggest that they have acquired an environmental permit and since both the water discharge were accidental. APD will be prosecution under regulation 38 because they have contravened regulation 12(1)(B). Although, APD may be exempt from needing a permit for the discharge of sewage into the river providing they only discharge five cubic meters per day or less. They would still need to have registered the exemption with the environmental agency. I would advise that there is no evidence to support that APD have complied with the required formalities, so they will not be able to rely on the exception and escape criminal lability.
Acorn property development will most likely state that the artificial dam bursting is an intervening act which will break the chain of causation.” However, in Empress Car V NRA the court held that an intervening act of a 3rd party will not brake the chain of causation unless it arose from extraordinary circumstances. In this scenario, there is no extraordinary events that have occurred because it would be foreseeable that a buttress could potentially impede the rivers flow causing a flood. However, another potential defense is that Acorn Properties discharged both water activities in an emergency to avoid danger to life or health. APD will need to provide evidence that they took steps to notify the environment agency as soon as possible, as well as taking steps to minimize the pollution. I would advise that it highly unlikely the defense would be successful, considering the dam burst three weeks after the water discharge. There is no evidence to suggest APD attempted to remedy the situation after the buttress deposited into the river. Therefore, Acorn Properties will be sentenced under regulations 38(1) of the EPR 2010 offences for polluting controlled waters.
If Dave is convicted under the offence of polluting controlled waters, he can be convicted and tried in the magistrate’s court and potentially receive a maximum fine of £50,000 or if tried in crown court Dave could face an unlimited fine and a maximum sentence of 5 years’ imprisonment. Katie is partner in the company so she is likely she to be subject the same penalties due to vicarious liability. The Orwell Oil case will provide APD with a general guidance on what penalties they are expected to face. In this case oil escaped from its interceptor tank causing serious damage to the river and its wildlife. Some of the facts in Orwell Oil case mirror those of this scenario, so I would advise that the penalties will be similar. So, I would advise that APD will have their case tried at the magistrates’ court and receive a fine around £36,000 for each water offence.
In the Vernon case, it was held that a “Land owner owned a measure of duty in negligence and nuisance to take reasonable steps to prevent natural occurrences on his land from causing damages to neighboring properties.” Applying the definition to this scenario, APD have not taken reasonable steps, so they will have to pay Karl Damages for their negligence. The local authority has complied with section 21 of the Flood & Water management Act 2010 by assessing the structural damage to the rivers walls and implemented stone buttresses to strengthen the wall, thus preventing the risk of flooding. Therefore, APD will not be able to claim any damages back from the local council for the flood.
The issue is whether architectural salvage can be legally classified as waste? Article 3(1) of the waste framework directive gives the legal definition of waste as “any substance or object which the holder discards or intends or is required to discard” APD intends to reuse the waste and replace back into the chain of utility, thus consigning it to a waste recovery operation satisfying the legal definition of waste. Furthermore, In the case of Vessoso v Ministere public and Zanetti v Ministere public of Italy 1990 it was held that substances that are capable of being recycled and have commercial value can still amount to waste. Thus, applying the facts to this scenario will render the architectural salvage controlled waste.
The EPR states that a business will need a valid environmental permit if they wish to use, deposit, keep, treats, stores or disposes of waste. In this scenario APD are keeping waste on their land and intend to assign it to a waste recovery operation, therefore an environmental permit is required under 12(1)(A) EPR. It is unlikely that APD have an environmental permit because schedule 9(3) states that no permit can be granted by a regulator for a waste operation, if there is no planning permission. If APD registered an exception online, they could be exempt from needing a full environmental permit considering the waste will fall under the category of scrap metal. This means APD can store 15,000 tonnes of scrap metal for up to 6 months providing the storage place has sealed drainage and is stored at a dock before being imported or exported. Therefore, APD will be in breach of regulation 38 for depositing waste without a permit because they have not acquired planning permission yet or any evidence that they registered an exemption.
Section 34 of the Environmental Protection Act 1990 states that the holder of the directive waste Will have a duty of care to make sure the waste is managed properly, recovered or disposed of safely, and not cause harm to human health or pollution of the environment. David and Katie have breached their duty of care under Section 33(1)(a) of the EPA 1990 which states it is a criminal offence to knowingly cause or knowingly permit a deposit of controlled waste without a permit. In the case of Shanks & McEwan v EA 1997 it was held the prosecution only need to prove knowledge of the deposited waste and demonstrating breach of the license is not necessary. Thus, it is irrelevant for APD to argue that they were not aware they needed a permit, the fact they have deposited waste without a permit is sufficient to amount to an offence. The meaning of deposit was defined in the case of R v Metropolitan Stipendiary Magistrates to include temporary deposits as well as permanent ones. Therefore, APD will be in breach for temporary depositing waste on their land under regulations 38(1) for contravening regulation 12(1)(A). Section 39(1) states APD could face up to a £50,000 fine and a sentence of 12 months in prisons if tried in a magistrates’ court or and an unlimited fine and 3 years in prisons if tried in a crown court. A company and owner in Oxfordshire were ordered to pay £21,000 for illegally depositing illegal waste at a farm site. Therefore, APD can expect a fine around that price because the facts are similar and this case highlighted there is a zero-tolerance approach for illegal deposits.
If the illegal deposit is over 3 meters high then the neighbors could have a public nuisance claim under the EPA 1990 providing there is an unreasonable effect on the enjoyment or use of land. Therefore, APD will be in breach of nuisance claim and will be liable to pay compensation to the neighbors because of the visual impact providing it is over 3 meters high.
Section 57 (1) Town & Country Planning Act states that “planning permission is required for the carrying out of any development of land.” Therefore, the issue is whether or not the renovation of the public house to a village amenity and the renovation and conversion of the outbuildings into four bedroom cottages is a development. Section 55 (1) Town & Country Planning Act 1990 gives the definition of a development as “the carrying out of building operations, engineering operations, mining operations in, on, over, or under land; or…the making of any material change in the use of any buildings or other land” Therefore, the definition is satisfied because APD intend to change the use of the buildings and will more than likely need to carry out building operations. This is because APD will be required to undertake building work in order renovate and convert the project. I would advise that the building work could not be classed as a permitted development and will require planning permission because the building work will not be minor. Also, APD will require planning permission for the change of use of the buildings and because it is for mixed use and commercial purposes. Therefore, it is irrelevant that section 55 (2) TCPA states drinking establishments are permitted to change class without planning permission under A1 Shops, and A2 professional finical services providing they have a window a ground level post office.
For APD to obtain planning permission they would have had to submit a valid application to the Local Planning Authority which will then be added to the public register for comments. Then a consultation will then take place, following a visit from the planning officer and any amendments will then be made. The decision will be reached after 8-16 weeks and the one of three elements may be granted, full permission, permission with conditions and refusal which can be repealed. If APD are refused planning permission they have the right to appeal under section 78 TCPA. APD have committed a planning breach because they have started operating without planning permission, thus not complying with the planning process.
APD have built without planning permission, therefore the local planning authority can serve an enforcement notice requiring them to but things back as they were. APD can submit an application for a certificate of lawfulness in order to remedy the situation, but if it’s rejected and they ignore the enforcements notices they can expect to receive a fine. For instance, a man was ordered to pay £2,400 in fines and costs by Malvern Hills District Council after breaking planning laws over serval years. This case will issue APD with a general guidance of what they can expect if they fail to comply with the enforcement notices.
An environmental impact assessment is a new form of planning permission which considers the effects and impacts a development will have on the environment. Additionally, it gives the public the chance to see the plans and comment on the development. The EIA process starts with a screening process which established if the development requires an EIA, then scoping which identifies what the potential impacts are and then the assessment of the impacts. Then reporting /reviewing the EIA before making a decision. APD will be required to carry out and EIA under schedule 2 because it is a large-scale development with 2 acres of land and there is no evidence that APD have carried out an EIA.
Schedule 5 of the Wildlife & Countryside Act states it is against the law to either damage or destroy a breeding or resting place, deliberately or by not taking enough care. Therefore, APD have negligently damaged the otter’s habitats from the water discharge so they will be guilty of the offence. Thus, APD can expect to receive a maximum penalty in the Magistrates’ Court and up to £5000 fine and/or six months’ imprisonment.
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