CONTENTS : ELM 15[2003]6 341

Volume 15 Issue 6 2003 ISSN 1067 6058

Editorial NIMBY-ism and the spectre of maritime pollution 343 DAVID POCKLINGTON Articles PROFESSOR D E FISHER The principles of a contemporary environmental legal system 347 Queensland University of Technology

CLAIRE HOWELL The environmental dimension to company law modernisation 354 DR BEN PONTIN University of the West of England, Bristol

Case commentary Rylands v Fletcher restated – the House of Lords’ decision in 367 JASON LOWTHER Transco plc v Stockport Metropolitan Borough Council University of Wolverhampton Case Law EC LAW Ligue pour la protection des oiseaux and others v Premier Ministre, Ministre de 370 l’Amenagement – preliminary ruling on hunting seasons Criminal Proceedings concerning Nilsson – interpretation of trade in endangered 371 species regulations CIVIL LIABILITY Loftus-Brigham and another v Ealing London Borough Council – tree roots and 372 causation issues Daiichi UK Ltd v Stop Huntingdon Animal Cruelty – corporations and the tort of 373 harassment PLANNING LAW R (Jones) v Mansfield District Council – planning and EIA 374 Evans v First Secretary of State – screening directions in EIA 375 WILDLIFE Hughes v DPP – possession of wild birds 377 Case round-up Packaging offences – waste management – water pollution – PPC 378 Strategic Issues Biofuels EFRA, Seventeenth Report, Session 2002–2003 (HC 929) 383 World Summit on Sustainable Development 2002 – From Rhetoric to Reality EAC, Twelve Report, Session 2002–2003 (HC 98) Government’s Response to EAC Tenth Report, Learning the Sustainablity Lesson EAC, Sixth Special Report, Session 2002–2003 (HC 1221) Greening Government 2003, EAC, Thirteenth Report, Session 2002–2003 (HC 961)

European Towards a Thematic Strategy on the Sustainable Use of Natural Resources 392 Strategic Issues Environment Policy Review: Consolidating the environmental pillar of sustainable development Draft Directive on CHP Measures to safeguard security of electricity supply Energy end-use efficiency and energy services

Industry Soundings Anti-social behaviour – noise nuisance – hazardous waste 398

Book Reviews Papers from the 2001 and 2002 UKELA Conferencess400 Environmental Human Rights: Power, Ethics and Law – Hancock

Legal Update Environmental law at a glance 401 Volume 15 Issue 6 2003 ISSN 1067 6058

Environmental Law & Management EDITORIAL BOARD ADVISORY BOARD www.lawtext.com ISSN 1067 6058 CONSULTANT EDITORS Dr Paula Case Malcolm Forster Lecturer, Faculty of Law, Volume 15 [2003] Malcolm Forster 6 issues plus index Head of the Public International University of Liverpool £380 US$593 €600 Law Group, Freshfields Bruckhaus Deringer Andrew Wiseman Partner and Head of Environmental Law CONTRIBUTIONS Professor David Hughes Group, The editors and publisher welcome Professor of Housing and Planning Law, Trowers & Hamlins submissions for publication. Articles, letters and other material should be submitted to: Environmental Law Institute, De Montfort University, Leicester Professor Malcolm Grant The Publishing Editor Professor at the Department of Environmental Law and Management MANAGING EDITOR Land Economy, Lawtext Publishing Limited Office G18 – Spinners Court Dr Ben Pontin University of Cambridge 55 West End Unit for Environmental Law, Witney University of the West of England Professor Neil Hawke Oxon Environmental Law Institute, OX28 1NH EDITORS De Montfort University, Leicester E-mail: [email protected] CASE REPORTS Tel: +44 (0) 1993 706183 Jason Lowther Professor William Howarth Fax: +44 (0) 1993 709410 Principal Lecturer, Professor of Environmental Law, School of Legal Studies, University of Kent at Canterbury This journal is a refereed journal and may be University of Wolverhampton cited as: ELM 15 [2003]0 00 Tim Jewell CASE ROUND-UP Barrister, Visiting Senior Fellow, Dr Carolyn Abbot Faculty of Law University of Manchester University of Southampton Environmental Law and Management is published by Lawtext Publishing Limited SCOTTISH EDITOR Owen Lomas Phil Hunter Head of Environmental Law Group, © 2003 Lawtext Publishing Limited All rights reserved. Brodies, Allen & Overy Edinburgh Any UK statutory material in this publication Michael Morris is acknowledged as EUROPEAN EDITOR Nabarro Nathanson Crown Copyright. Anna Syngellakis No part of this publication may be Jean Monnet Principal Lecturer in Professor Colin Reid reproduced or transmitted in any form, or by European Studies, Department of Law, any means, or stored in any retrieval system SLAS, University of Portsmouth University of Dundee of any nature without the written permission of the publishers. INDUSTRY SOUNDINGS Donald Reid Permitted fair dealing under the David Pocklington Environmental Law Consultant, Copyright, Designs and Patents Act 1988, or British Cement Association Morton Fraser, Solicitors, in accordance with the terms of a licence issued by the Copyright Licensing Agency in Edinburgh respect of photocopying and/ or LEGAL UPDATE reprographic reproduction is excepted. Jenny Bough Andrew Waite Imperial College at Wye, Environment Group Co-ordinator, Any application for other use of copyright material including permission to reproduce University of London Berwin Leighton Paisner; extracts in other published works must be Vice-President, made to the publishers, and in the event of European Environmental such permission being granted full Law Association acknowledgement of author, publishers and source must be given. Professor Dermot Walsh PUBLISHER Department of Law, Nicholas Gingell University of Limerick, PUBLISHING EDITOR Ireland Rachel Caldin Chris Willmore Typeset by: School of Law, Connell Publishing Services, Oxon OX44 7NW University of Bristol

Printed and Bound in the United Kingdom by Information Press, Eynsham EDITORIAL : ELM 15[2003]6 343

NIMBY-ism and the spectre of maritime pollution

‘Legend has it that when a monkey was washed ashore at Hartlepool during the Napoleonic wars, local people hanged it as a French spy. Fear and irrational loathing can make monkey-hangers of us all.’1

Ship-breaking does not normally attract media attention on a national scale, but during October and November 2003, the progress of four former US vessels was subject to daily updates as they sailed ever closer to the Casquettes2 en route to the ship-breakers yard of Able UK in the North East. These events were accompanied by frantic official activity (Defra and Environment Agency officials scurrying between Whitehall, the Cabinet Office and Hartlepool; the issue debated in the House of Commons;3 and the holding of an urgent evidence session of the Environment, Food and Rural Affairs Committee Select Committee4), and two High Court hearings. The fate of these ships now moored on the River Tees, and that of the remaining nine vessels5 still tied up in the James River, Virginia, is far from settled, but the events leading to the present situation have highlighted wider problems associated with the treatment of end-of-life vessels, the integration of the regulatory agencies responsible for the different tranches of legislation controlling this activity, and the provision of accessible, accurate and unbiased information. Few of the principal actors in the current saga have emerged with their credibility intact – government and the local populations in both the United Kingdom and the United States have resisted having these ‘ghost ships’ in their back yard; groups campaigning against their dismantling have been accused of focusing on public anxiety rather than on a rational analysis of the risks involved; and commercial interests have made few concessions to the genuine public concerns involved. Even the EU Environment Commissioner became embroiled in these essentially local issues, although others, including Greenpeace, managed to achieve the moral high ground by focusing on the broader concerns of the treatment of end-of-life vessels – an area in which the ongoing performance of the United Kingdom does not bear close scrutiny (see below).

Information, misinformation and muddle For contentious environmental activities such as ship-breaking, unbiased information is virtually impossible to obtain.6 Those directly involved will certainly have access to such information, but this will generally be restricted to their own activities, and may not be reflected in their public statements. It is therefore unlikely that any one organisation will have the full picture, and a certain degree 1 The Times, 13 November 2003. of interpretation is often necessary to determine the level of reliance which may 2 The Casquettes are the rocks that mark be placed on its assertions. the start of the English Channel’s However, in this case, the Environment, Food and Rural Affairs Select shipping traffic system, and any ship Committee7 took evidence from the UK parties involved, and the report of its proceeding beyond this point must state its ultimate destination. proceedings gives a comprehensive overview of the situation as it stood in mid- 3 Hansard, 3 November 2003, col. 535, November 2003. Being subject to scrutiny by the Committee, information ‘Decommissioning (American Ships)’ (3 gathered at the oral session is more detailed and less unambiguous than the November 2003). 4 Hansard, ‘Ghost Ships: Urgent Evidence written evidence. Nevertheless, all evidence was subject to the parliamentary Session’, Environment, Food and Rural requirements for veracity, and as such few of the more extreme claims appearing Affairs Committee (19 November in the media were repeated. 2003). The evidence of Peter Mandelson, MP for Hartlepool, made reference to local 5 Although the Able UK contract covers 13 vessels in the US James River Fleet press reports which talked of: (plus two other part-constructed vessels), a total of 58 vessels are ‘birth defects in the town resulting from the arrival of these ships, the moored in the James River. 6 ‘Green Claims v Greens’ Claims’ ELM decimation of wetlands and wildlife as a result of this waste disposal and 13[2001]5 229. recycling activity, and of pollution slicks following the ships across the Atlantic 7 See n. 4 above. before these ships break up in pandemonium in the dock.’ 344 ELM 15[2003]6 : EDITORIAL

He further suggested that there had been scaremongering, the use of half truths and ‘making statements that lacked any sense of proportion or perspective or scale which conjured up terrible pictures in people’s minds which were not justified’. This was supported by Frank Cook, MP for Stockton North,8 who, quoting The Independent on Sunday, considered this to be ‘one of the more outrageous pieces of spin recently to be inflicted on the British public. It risks resulting in much more damage to people and the environment worldwide than it claims to try to prevent’. This theme was taken up by the other broadsheets,9 and it is unfortunate that parliamentary time did not permit a further session at which additional witnesses could be called in order to ascertain the facts behind such claims. However, the lack of coherence between the various regulatory bodies, the Environment Agency’s flawed approach to the modification of the site licence, and the uncertainty and indecision over the planning permissions all gave weight to the NGOs’ assertion that the environmental aspects of the ship-breaking activity had not been given due consideration. This was emphasised further by the High Court rulings on 8 November and 15 December. The former held that the licence for Able UK could not stand, requiring the company to apply for a new licence, involving a full environmental assessment if it wants to dispose of ships. The latter ruled that the planning permission held by Able UK from Hartlepool Borough Council was not broad enough to cover the ship-breaking activity.

Hazardous waste content and seaworthiness of the US ships An assessment of the potential environmental problems associated with the ‘ghost fleet’10 and the seaworthiness of the vessels was first made three years ago by the US Maritime Administration (MARAD), which has the responsibility for all 110 vessels in the US National Defense Reserve Fleet,11 and which is under legislative, financial and environmental pressure12 to dispose of the ships as soon as possible. The MARAD report13 states:

‘Environmental dangers associated with MARAD’s old, deteriorating ships are increasing daily. These vessels are literally rotting and disintegrating as they await disposal. Some vessels have deteriorated to a point where a hammer can penetrate their hulls. They contain hazardous substances such as asbestos and 8 Frank Cook, MP Stockton North, solid and liquid polychlorinated biphenyls (PCBs). If the oil from these vessels written evidence to the EFRA were to enter the water, immediate Federal and state action would be required. Committee, n. 4 above, document ... G4. A routine inspection of 11 of the 40 “worst condition” vessels revealed 9 M Hume, ‘Ghost ships don’t scare me; but the alarmism does’, The Times, corrosion, thinning, and rusting of the hull; asbestos hanging from pipes below 13 November 2003; S Dyson, editor deck; lead-based paint easily peeled from the ship; solid PCBs (in cabling); of the Teesside Evening Gazette, and in some instances remnants of liquid PCBs in electrical equipment.’ wring in the Guardian, 15 November 2003, referred to ‘premeditated hysteria by much of the world’s press’ Much has been made of the MARAD report, but it is important to place it in context. that greeted the arrival of the vessels. As with many vessels and other products of the same period, the vessels in the 10 The first usage of the term ‘ghost ‘ghost fleet’ contain a number of substances not now permitted by measures such fleet’ was made in the United States 14 to describe the James River Reserve as the EU’s ‘marketing and use’ Directive. Furthermore, much of the hazardous Fleet. For example, see the article, materials and oil was removed from the vessels prior to their journey to the United ‘The Ghost Fleet: Time Bombs on the Kingdom, and the quantities of toxic materials in the vessels arriving in Teesside James’, The Virginian-Pilot, 7 April were probably no greater than other contemporary items, such as the ‘slam door’ 2002. 11 A government-owned and trains that are currently being dismantled without fuss. administered fleet of inactive, but The vessels’ physical condition is likely to have deteriorated further since the potentially useful, merchant and non- report was produced in March 2000. In terms of their seaworthiness, however, military vessels to meet shipping requirements during national professionals for the US Coastguard inspected them prior to their voyage, issuing emergencies. the necessary ‘load line’ certificate, and the UK Maritime Coastguard Agency also 12 Under the National Maritime sent a surveyor to review their condition. Heritage Act of 1994, as amended. Their potential to leak is less satisfactory. MARAD classified the potential to 13 Report of the Inspector General (MA- 2000-067) (10 March 2000); leak on a scale of 1 to 5 (1 = highest, 5 = lowest), and of the vessels destined for available at www.oig.dot.gov/ the United Kingdom, the first two were classified as ‘2’ and the second two as ‘3’. item_details.php?item=203. One 30-year old vessel15 which was classified as ‘2’ had already leaked oil into the 14 EU Marketing and Use Directive 76/ James River, requiring MARAD to apply patches to 20 leaks, remove hazardous 769/EEC, as amended. 15 The Donner, which was not scheduled material, deploy containment booms and pump oil from the vessel, which was said for disposal in the United Kingdom. to be ‘disintegrating to a point where it will not be seaworthy much longer’. EDITORIAL : ELM 15[2003]6 345

Chronology, communication and co-ordination A number of legal instruments control the activities associated with ship-breaking in the United Kingdom, which are enforced by a range of regulatory agencies – the Environment Agency, the Port Authority, local authority planning bodies, Defra, and the Health and Safety Inspectorate. Input from statutory consultees, including English Nature and the Crown Agency, is also required. Central to the movement of the waste from the United States is the EU Trans-Frontier Shipment of Waste Regulation, (Council Regulation 259/93/EEC as amended) which requires all the appropriate permissions and permits to be in place. On 22 July 2003 the Environment Agency issued its approval to the United States for the movement of all 13 vessels to Able UK for recovery. At this stage the Agency had not modified the waste management licence for the treatment of the vessels, nor had it received confirmation from Hartlepool Borough Council that the appropriate planning permission was in place.16 Applications for these two critical permissions were made by Able UK on 31 July and 18 August respectively. On 17 September, Hartlepool Borough Council informed Able UK that an environmental impact assessment would be required for the construction of the coffer dam/bund necessary for dry dock operation, following which Able UK withdrew its planning application, seeking to rely upon an earlier permission granted in 1997 by Teesside Development Corporation (TDS), Hartlepool Borough Council’s predecessors. However, when TDS was disbanded in 1998, a substantial part of its documentation went missing. Furthermore, Able UK was unable to locate its own copy. Modifications to the waste management licence were issued by the Environment Agency on 30 September, but following a legal challenge by Friends of the Earth, the High Court ruled on 8 December that a new licence application was required, which had to include an environmental impact assessment. Throughout September, the Agency kept the United States (MARAD) informed of the uncertainties surrounding the permitting issues, but it was not until October that it indicated that the ships should not sail, stating ‘in the light of these developments and the absence of an appraisal of alternative approaches, you may wish to consider the timing of the departure of these vessels to the UK’. Whilst appropriate for communications with civil servants, such weasel words were insufficiently robust to dissuade the US authorities, which, in the tradition of Nelson, ignored the request. In his evidence to the Select Committee, Craig Mc Garvey of the Environment Agency stated17 that the Agency ‘facilitated a number of meetings’ between the regulatory agencies involved ‘just to make sure that everyone understood how the whole jigsaw hung together’. However, the Environment Agency has no authority to determine the actions taken by these other bodies, and the lack of co-ordination between them is clear from statements made by the Minister and the Agency, i.e.:

‘The condition of the vessels, although clearly it is an environmental issue, is 18 16 A more detailed analysis of the not an issue for us.’ chronology is to be found in the ‘DEFRA’s role is limited to granting a licence for dredging under the FEPA evidence of Able UK and Friends of the 1985.’19 Earth to the EFRA Select Committee, ‘The only concern for the Department of Transport is whether the ships are n. 4 above, papers G5 and G1 20 respectively. seaworthy.’ 17 In response to EFRA Committee, n. 4 Regardless of the validity of their claims, the effectiveness of the NGOs’ ability above, question 51. to delay/prevent the treatment of the US ships by Able UK was assisted to a 18 Craig McGarvey, Environment Agency, significant degree by the shortcomings in the necessary authorisations. in response to EFRA Committee, n. 4 above, question 59. 19 Elliott Morley, n. 3 above, col. 537. Food 21 and Environment Protection Act (Part ‘The mote in thy brother’s eye’ II) (FEPA) 1985. 20 Ibid., col. 539. Ships reach the end of their useful life after about 25–30 years, and are broken 21 ‘Why beholdest the mote that is in thy up for scrap, which is recycled in steelmaking furnaces.22 In the 1970s, ship- brother’s eye, but considerest not the breaking was a highly mechanised operation centred in Europe, but the increasing beam that is in thine own eye?’, St Matthew, Ch. 7, v. 1. costs associated with environmental, and health and safety, requirements drove 22 This constitutes about 95 per cent of the industry to countries where these issues were of lesser concern and the their mass. availability of cheap labour permitted more rudimentary dismantling techniques 346 ELM 15[2003]6 : EDITORIAL

to be adopted. Over three-quarters of the world’s end-of-life vessels are now broken up in India, Bangladesh, Pakistan and Turkey, and by forcing the ‘ghost ships’ away from Able UK, the NGOs’ action may perpetuate this unwelcome trend. Although the trans-shipment of waste is covered by international legislation and agreements, its enforcement is not consistent, and important players such as the United States are not signatories to the Basel Convention. Following the London Dumping Convention, the British Navy no longer sinks its redundant submarines mid-Atlantic, but recent experience has shown its performance to be less satisfactory than that of MARAD. In 2001, the Royal Fleet Auxiliary vessels Olwen and Olna, built in 1965 and 1966, were sent to Turkey to be scrapped. However, they were returned as Turkey does not permit the import of asbestos and PCBs. Still under a British Flag, the vessels then sailed to Greece, were registered under the names Kea and Kos, and transferred to the Comoros – a flag of convenience. Their final destination was Alang in India, where they were beached and broken up manually.23 Turkish yards have recently been requested to tender for the disposal of HMS Intrepid, a Falklands war veteran built in 1965, which is reported as containing 40 tonnes of asbestos. In addition, the Ministry of Defence is seeking an acceptable disposal route for its nuclear submarine fleet comprising the 11 floating hulks kept in naval dockyards, some dating back to the 1980s, and a further 16 approaching the end of their lives.24 Speaking at the Environment Agency’s Annual Conference in September 2003, the Secretary of State identified the UK’s presidency of both G8 and the European Union in 2005 as a key opportunity to influence international action on the environment. Ship-breaking is clearly an area that would benefit from such attention, but before the United Kingdom can speak with any authority, it needs to ensure that its own vessels are disposed of responsibly, and that there is ‘joined-up government’ in the administration of vessels sent to the United Kingdom. Additionally, an initiative aimed at creating a culture of accessible, accurate and unbiased information would be beneficial to both industry and local stakeholders, and the environment.

Postscript Whilst the broader issues of environmental policy should not be determined by the minutiae of EU waste law, the treatment of the ghost ships issue has highlighted an important area of conflict. The Trans-Frontier Shipment of Waste Regulation requires the waste to be ‘recovered’, and in this respect the Environment Agency employed a somewhat simplistic test: ‘we looked at the content of the vessels and approximately 95 per cent of these vessels are for recovery, so it passed the test’.25 This, however, is at odds with Case C-119/01 SITA EcoService Nederland BV, formerly Verol Recycling Limburg BV and Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, in which the European Court held that the first operation a waste undergoes post-shipment must be used to determine the purpose of that shipment. Taken in conjunction with the ruling in Case 444/00 The Queen and Environment Agency, Secretary of State for the Environment, Transport and the Regions ex p. Mayer Parry Recycling Ltd on the designation and completion of 23 P Brown, ‘Britain offloads its own ‘recovery’ operations, it is clear that the ‘ghost ships’ would be disposed of by Able ghost fleet: contaminated ships sent UK, and recovery would only take place in a subsequent steelmaking operation. to India via Turkey’, The Guardian, 14 October 2003. Although under different contractual arrangements such problems might be 24 P Brown, ‘Ministry agonises over fate circumvented, the proposed changes in the Trans-Frontier Shipment of Waste of nuclear subs’, The Guardian, 18 Regulation and the introduction of measures on persistent organic pollutants will November 2003. 25 C Mc Garvey, Environment Agency, in result in further problems for the ship-breaking industry. response to EFRA Committee, n. 4 above, question 42. David Pocklington PRINCIPLES OF A CONTEMPORARY ENVIRONMENTAL LEGAL SYSTEM – FISHER ::: ELM 15[2003] 6 347

The principles of a contemporary environmental legal system1

Professor D E Fisher Professor of Law, Queensland University of Technology; Consultant, Philips Fox Lawyers

Introduction and air. It is, however, human beings, either as individuals or endowed with some form of juristic personality, who The principles enlivening a system of environmental law perform these functions. In other words, neither these in 2003 reflect the growing recognition of the problems elements of the environment nor the environment itself facing the management of the global environment. While have any status within the legal system. Society may not the international community may recognise these always have adopted this utilitarian view of the problems and indeed provide for their solution, it is environment. However, it seems to have been the dominant essentially for the nation states and their communities to perspective for the last 300 or 400 years – certainly in take action to solve these problems. A legal system – by those communities which have adopted capitalist its very nature – cannot by itself ensure an environment economic structures. In these societies the environment of an acceptable quality. But in the absence of a is the instrument by which the community achieves its satisfactory legal system, the environment is unlikely to economic objectives. be protected. But not all societies and not all cultures have adopted this view of the environment. This view may even be Nature of environment changing in cultures based upon capitalism. The international community has increasingly recognised the What do we mean by ‘environment’ for this purpose? It is fragility of the environment and its susceptibility to harm the totality of the physical, chemical and biological as a result of overexploitation. Thus, the capacity of the contexts within which human beings have their existence. environment to sustain itself has in a sense become the Just as important, human beings are themselves part of limiting factor upon its exploitation. The environment is this environment. There are therefore at least two no longer merely an instrument for economic perspectives of ‘environment’ with which the law has to development. It has become an institution to be valued grapple: the first is the extent to which the environment – for itself. While the environment continues – at least for or from a utilitarian perspective the resources of the the most part – to lack status as a matter of law, it has environment – can be used for the benefit of the increasingly become an institution recognised and community; the second is the extent to which the protected not only for its instrumental values, but also environment is able to accept the return of these resources for its intrinsic values. after they have been used to the advantage of the community. So the environment is a resource of economic benefit but also the destination of ecological harm. A legal Concept of integration system – in whatever form, written or unwritten, stated or It is this multidimensional or holistic view of environment unstated, and however enforced – has a part to play in which is now beginning to pervade the legal system. It is both of these systems. holistic in a number of senses. First, the emphasis of the There is a further conundrum. The law is concerned legal system is not so much upon the individual elements with the exercise of rights and the discharge of duties. of the environment – such as land, minerals, water and air The subject matter of these rights and duties may well be – as upon the interrelationships among them. Secondly, elements of the environment such as land, minerals, water there is a growing recognition that the development of one element of the environment is likely to have impacts upon the development of another element of the environment. Thirdly, the development of the environment 1 The principal references in this article are the ‘Declaration of the United Nations Conference on the Human Environment 1972’ (1972) 11 ILM is considered in the context of the impact on the 1416 (hereafter ‘Stockholm’); the ‘Declaration of the United Nations environment which the development is likely to have. Conference on Environment and Development 1992’ (1992) 31 ILM Fourthly, no one person or institution is likely to have the 874 (hereafter ‘Rio’); the ‘Declaration of the United Nations World Summit on Sustainable Development 2002’; see http:/ knowledge and skills necessary for an understanding of www.johannesburgsummit.org/html/whats-new/whatsnew.html all of these interrelationships and impacts so as to make (hereafter ‘Johannesburg’); Commission on Environmental Law of the informed and rational decisions about the environment International Union for the Conservation of Nature, Draft International Covenant on Environment and Development, 2nd edn (Gland and from these various perspectives. In practical terms, Cambridge, International Union for the Conservation of Nature, 2000) therefore, a holistic approach requires integration at three (hereafter ‘Draft Covenant’). levels: 348 ELM 15[2003]6 : PRINCIPLES OF A CONTEMPORARY ENVIRONMENTAL LEGAL SYSTEM – FISHER

• integration of process resource and of the environment out of which it is taken • integration of substance which lies at the heart of the concept. • integration of outcome. This adds a further dimension to the legal conundrum. Not only does the environment lack status within the legal In effect, this means that there should be one decision- system, but so also, on the face of it, do future generations making process which considers all the uses and abuses whose interests are to be secured by the application of of the elements of the environment for the purpose of this principle. The law therefore needs to accommodate achieving one single outcome. This outcome is, of course, not only the interests of existing and identifiable sustainable development. individuals and institutions with legal status, but also the A threefold approach to integration in this way is a institution of the environment and the interests of future major challenge. The use of the environment is in most generations which lack existing legal status – a task which sets of circumstances a local or site-specific activity. But may be so gargantuan as to be almost impossible. Against the resources that are used in any particular development this background of complexity, let us turn to the emerging – albeit site-specific – may well come from a whole range principles of the legal system according to which, it is of other areas or places. Not only that, the impact of the hoped, integration of process, of substance and of use of these resources may well occur anywhere. For outcome can be achieved. instance, an environmentally damaging greenhouse gas may be emitted from one specific source but the impact Concept of common responsibility may be much more widespread and potentially global. An example may illustrate the point. Imagine that there Rights and duties are the stuff of the law. However, there is a proposal to construct a tourist resort complex is a very wide range of persons and institutions which comprising sporting, residential, commercial and other exercise rights and perform duties. There are, for example, facilities on either a small low-lying island, on the coastal the owners of the resource, the developers of the resource margin of a larger territorial area, or in the mountainous and the regulators determining access to and use of the hinterland of an undeveloped territorial area. A number resource. Regulators include those responsible for of questions need to be answered: regulating the environmental impact of the use, as well as the use itself. A range of disciplines is involved: economists, • Where do the materials needed for the construction ecologists, planners, engineers, architects and designers. of the complex come from? Each operates within a structured cultural framework of • What is the source of the water, electricity and other knowledge, understanding and values. To this there must infrastructural requirements? be added individual members of the community who are • What impact will the extraction of the construction interested if not concerned about the environment in materials have upon the environment? either its utilitarian or intrinsic sense. These values may • What impact will the provision of the infrastructure well be in conflict. It is, however, this range of interested have on the environment? parties and this range of disciplines which together have • What impact will the construction and operation of responsibility for the quality of the environment that is the complex have on the ecological and cultural values the outcome of these processes. While no one person or affected? institution is directly responsible for the quality of the • Is the proposed development sustainable? environment, each of these persons or institutions in performing their functions within the legal system – rights Concept of sustainability and duties – together have responsibility for the outcomes. The introduction of sustainability creates further Within the more specific matrix of rights and duties, challenges. To determine whether or not a development it seems reasonably clear that everyone has some sort of is sustainable itself raises a number of questions. According responsibility, either moral or cultural, for the environment, to one definition, ecologically sustainable development but within a framework of integrated and interlinked legal is ‘using, conserving and enhancing the community’s rights and duties and legal powers and liabilities. The law resources so that ecological processes, on which life may well find its origins in a declaration of a parliament or depends, are maintained, and the total quality of life, now a statement of a court, but it is ultimately the responsibility and in the future, can be increased’.2 Therefore, the of the community and of individual members of the development needs to be sustainable in both economic community – whatever their interests – to make sure that and ecological terms. In other words, the element of the the system works in the way it was intended. environment which comprises the resource must not be What are the principles that drive this regime of developed to the point of overexploitation, and the responsibility? One of the most helpful sets of formal environment out of which the resource is taken must not statements about these principles is the Draft Covenant.3 be irreversibly damaged. It is the conservation of the It is structured as a set of integrated rights and obligations

2 Commonwealth of Australia, National Strategy for Ecologically 3 See n. 1 above. Sustainable Development 1992. PRINCIPLES OF A CONTEMPORARY ENVIRONMENTAL LEGAL SYSTEM – FISHER ::: ELM 15[2003] 6 349

– both procedural and substantive – linked specifically to no doubt, but one with which most, if not all, communities the achievement of environmental conservation and are currently grappling. sustainable development (Art. 1). While it acknowledges the responsibilities of states in relation to environmental Principles of an environmental legal system conservation and sustainable development (Art. 11), it specifically declares the responsibility of persons in The concepts of environment and development are related relation to the achievement of these objectives (Art. 12). functionally through environmental conservation and Thus, persons have rights – for example in relation to sustainable development. This links the intrinsic values of information and participation (Art. 12(3), (4)) – but they the natural environment and the utilitarian values also have duties. In particular it is declared that ‘all persons associated with its development – in other words, intrinsic have a duty to protect and preserve the environment’ (Art. values compared with human or instrumental values; or, 12(2)). This duty does not exist in a vacuum. Like all duties, alternatively, the relationship between nature without legal it is linked to a correlative right, namely ‘the right of status and human beings with it. The Draft Covenant treats everyone to an environment and a level of development environmental conservation and sustainable development adequate for their health, wellbeing and dignity’ (Art. (ecologically sustainable development) as the outcomes 12(1)). It is the nexus between environment and to be achieved in general, and the clear implication is that development – to which we have already adverted – which this is the responsibility of everyone (Art. 1). Strictly, lies at the foundation of the principles that now drive an however, neither environmental conservation nor environmental legal system. sustainable development is itself a principle: each is an The Draft Covenant is based upon nine principles outcome. Yet these two concepts are often treated as (Arts 2–10). In synoptic form these are: principles. Nevertheless, there is, it is suggested, a very clear and important distinction between environmental • respect for all life forms conservation and the principles of environmental • common concern of humanity conservation, and sustainable development and the • interdependent values principles of sustainable development. In practice, • intergenerational equity principles may be either substantive or procedural. Let us • prevention consider first those of substance. • precaution • right to development Principles of substance • eradication of poverty • consumption patterns and demographic policies. Among the range of substantive principles supporting an environmental legal system are these: The use of the word ‘principle’ is itself interesting. A principle is the basis – moral, rational or whatever – • development according to which decisions are made and actions • conservation undertaken. A principle does not state what must or must • intergenerational equity not be done. It is rather the rational foundation for doing • prevention it. Principles are therefore intrinsically different from rules. • restitution Rules can be enforced through the legal system; principles • polluter-pays cannot be enforced in the same way. There may be an • user-pays. obligation to apply principles, but this necessarily leaves a considerable amount of discretion to the person in While each of these may be clear enough as principles, question. Principles, then, may well be the source or they assume different structures when translated into inspiration for enforceable rules of law, but they are not elements of a legal system. themselves rules of law. It is no surprise therefore that principles assume Development different structural forms and hence perform a range of The development of the resources of the environment – differentiated functions when they are incorporated within albeit within limitations – is an assumption upon which a legal system. Rights and obligations are linked to persons. the concept of sustainable development is based. While For most purposes principles are not linked in this way. the right to develop resources under the control of their They are expressed, in other words, in a passive rather owner is one of the elements of a right of property, the than an active form. It is no surprise that the nine principles right to manage the development of the natural resources set out in the Draft Covenant are structured in this way of a state is, again within limitations, an element of without reference to persons. For example, ‘the global sovereignty exercised by the state. The principle of environment is a common concern of humanity’ (Art. 3) development thus emerges as a right that natural resources and the ‘eradication of poverty, which in particular should be developed for the benefit – in our case – of necessitates a global partnership, is an indispensable the community. requirement for sustainable development’ (Art. 9). The It is, however, these limitations that have become function of the legal system is to translate these principles particularly important. The principal limitation is, of into enforceable rights and obligations – a difficult task, course, sustainability – but sustainability in two senses: 350 ELM 15[2003]6 : PRINCIPLES OF A CONTEMPORARY ENVIRONMENTAL LEGAL SYSTEM – FISHER economic and environmental.2 That is, the resource must generation in regard to the environment is qualified by not be overexploited and the environment out of which it the needs of future generations’ (Art. 5). Significantly, is taken must be protected. This approach is reflected in the language in all cases refers to generations and not the way the right to development is structured in the Draft persons. Future generations – or future persons for that Covenant. Thus, ‘the exercise of the right to development matter – do not have legal status. Does that mean no entails the obligation to meet the developmental and rights? Intergenerational equity in a different context has environmental needs of humanity in a sustainable and a somewhat longer history. One of the principles declared equitable manner’ (Art. 8). at Stockholm was the solemn responsibility of humankind ‘to protect and improve the environment for present and Conservation future generations’ (principle 1). Thus, intergenerational One of the elements of sustainability is ensuring that the equity is itself linked to protection of the environment. resources of the environment are not overexploited, in Protection of the environment is a critical outcome in itself. other words, that they are conserved. But conservation applies as much to nature and the natural environment in Prevention general as it does to those elements of the environment The environment is protected in a number of different which comprise resources capable of economic ways: first, by the principle of prevention and, secondly, development. This is reflected, first, in the special by the principle of restitution. The regulation of activities responsibility of humankind ‘to safeguard and wisely causing pollution of the environment has traditionally been manage the heritage of wildlife and its habitat’5 and, one of the most important functions of an environmental secondly, in the need for non-renewable resources to ‘be legal system. The rules of the civil and common law have employed in such a way as to guard against the danger of always been available to protect the interests of the their future exhaustion’.6 individual citizen. However, unless the interests of the The ethic of conservation in this double sense is citizen and the interests of the environment coincide, these similarly reflected in the Draft Covenant. In this case there rules would be ineffective to protect the environment as are a series of obligations – rather than principles – in a matter of public interest – hence the extensive relation to the major elements of natural systems which involvement of legislatures in seeking to protect the public require protection, namely stratospheric ozone, global interest in the environment. Moreover, the rules of civil climate, soil, water, natural systems, biological diversity, and common law are generally effective only and cultural and natural heritage (Arts 16–22). This retrospectively in relation to damage or injury that has approach reaches its apotheosis in Art. 13 of the Draft occurred. In other words, these remedies are for the most Covenant which essentially requires the pursuit of part unable to prevent damage. sustainable development policies which integrate The principle of prevention as an antidote to the environment and development. These policies, however, deficiencies of civil and common law emerged at Stockholm are to be aimed at four specific objectives (Art. 13(1): in 1972. Thus, principle 6 of Stockholm states that ‘the discharge of toxic substances or of other substances and • the eradication of poverty the release of heat, in such quantities or concentrations • the general improvement of economic, social and as to exceed the capacity of the environment to render cultural conditions them harmless, must be halted in order to ensure that • the conservation of biological diversity serious or irreversible damage is not inflicted upon • the maintenance of essential ecological processes and ecosystems’. The outcome contemplated by this principle life support systems. is clearly to prevent serious or irreversible environmental damage. The control of polluting activities is simply the Intergenerational equity means for doing this. Similarly – but differently structured There is, in addition, an increasingly significant aspect of – there is a duty to take all possible steps to prevent conservation, namely intergenerational equity. This pollution of the seas by potentially harmful substances appears, first, as the responsibility for safeguarding the (principle 7). Subsequently, environmental protection was natural resources of the earth for the benefit of present directly linked to the emerging concept of sustainable and future generations7 and, secondly, in the qualification development. In specific terms, ‘in order to achieve upon the right to development, namely that it must be sustainable development, environmental protection shall fulfilled ‘so as to equitably meet developmental and constitute an integral part of the development process’.9 environmental needs of present and future generations’.8 The Draft Covenant similarly creates a set of It is expressed in the Draft Covenant as a qualification on obligations in relation to the prevention of harm to the freedom of action. Thus, ‘the freedom of action of each environment: the prevention of pollution, the reduction in the generation of waste and the regulation of risks associated with the introduction of alien or modified organisms (Arts 23–26). It is, however, Art. 6 which states with clarity and simplicity the principle of prevention: 4 Rio, principles 3 and 12. 5 Stockholm, principle 4. 6 Ibid., principle 5. 7 Stockholm, principle 2. 8 Rio, principle 3. 9 Rio, principle 4. PRINCIPLES OF A CONTEMPORARY ENVIRONMENTAL LEGAL SYSTEM – FISHER ::: ELM 15[2003] 6 351

‘Protection of the environment is best achieved by of the resources of the environment – upon the ultimate preventing environmental harm rather than by beneficiary or user of the resource. In the case of water, attempting to remedy or compensate for such harm.’ for example, the expectation is that the cost of providing the infrastructure whereby the water is collected, While prevention is the best method for protecting the conserved and transmitted to the user – possibly including environment, clearly restitution remains a relevant any environmental costs – should be reflected in the price principle. paid by the user. Therefore, the costs of preventing environmental harm are included in the price by Restitution anticipating the potential harm during the development Depending upon specific circumstances, environmental approval process. Similarly, the costs of actual harm may be remedied in the sense of restitution or environmental harm are borne by the person who has restoration either as a matter of international law or caused the environmental harm in the context of restoring national law. In any event, the principle is the same. There the environment to its earlier condition. seems little doubt now that international law recognises the responsibility of states to ensure that activities within Principles of process their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits The function of process of national jurisdiction.10 It is moreover expected that Let us turn now to the principles associated with procedure states provide within their system of national law rules or process. Traditionally, a legal system has been much about ‘liability and compensation for the victims of more comfortable with ensuring compliance with process pollution and other environmental damage’.11 The rather than with substance, particularly where the reference to ‘other environmental damage’ is interesting; substance is in the form of prescribed outcomes of it seems to incorporate damage to the environment as decision-making processes. Processes therefore are not such rather than merely damage sustained by an individual only important for that reason but also for their own sake. citizen. The position probably remains somewhat unclear. In relation to an environmental legal system, process The Draft Covenant clearly recognises the liability of involves compliance with prescribed procedures. However, a state for significant environmental harm occurring given the nature of environment, process also involves the beyond the limits of its jurisdiction (Art. 48). In addition, methodologies of decision-making about environmental there is an expectation that the national legal system of a issues. For this purpose environmental issues include the state incorporates civil and criminal sanctions where management of natural resources as well as protection of environmental harm or serious environmental harm has the environment in the narrower sense. occurred (Arts 52 and 52BIS). Effectively, these are the Protection of the environment is – as has been sanctions which support the duty imposed upon all emphasised – a matter of the public interest. persons – as distinct from other institutions in the Consequently, members of the public are in theory at least international community – to protect and preserve the entitled to information about proposed and perhaps environment (Art. 12(2)). existing developments, their actual or potential impact on the environment, and the decisions which will be taken Economic instruments in relation to these matters. The key elements by way of There is a further dimension to the principle of process include: environmental protection. The environment is protected not only by the exercise by government of powers of direct • provision of information regulation and by the formulation of rules of liability for • access to this information environmental damage, but also by the use of ‘economic • provision of further information instruments’. This last was recognised at Rio, where ‘the • opportunity to comment on the information internalisation of environmental costs and the use of • participation in the decision- making processes about economic instruments’ were commended (principle 16). future developments In doing this, however, it was expected that ‘the polluter, • access to the judicial system for the purpose of in principle, should bear the cost of pollution’. The Draft ensuring compliance with the law. Covenant similarly expects the application of the principle ‘that the costs of preventing, controlling and reducing The key concepts are therefore consultation and potential or actual harm to the environment are to be participation in various ways. borne by the originator’ (Art. 11(6)). The traditional instrument by means of which This is sufficiently wide to include not only the information on environmental impacts is available has been polluter-pays principle, but also the user-pays principle, the environmental impact statement, or some variation which places the financial responsibility for preventing of it. This has enabled the developer of the resources of environmental harm – in the context of the development the environment to assess relevant matters; the regulators similarly to assess environmental impacts; and, to the extent of public participation, individual members of the public to become involved in these deliberations. It needs 10 Draft Covenant, Art. 11(1)(b); see also Rio, principle 2. to be emphasised that environmental impact statements 11 Rio., principle 13. 352 ELM 15[2003]6 : PRINCIPLES OF A CONTEMPORARY ENVIRONMENTAL LEGAL SYSTEM – FISHER merely provide information and analysis so as to assist it does not mandate a particular outcome; it merely assists those invested with the power to make the decisions. In in the decision-making process. However, unlike more recent years, however, the use of environmental environmental impact assessment, it goes beyond the impact statements as a methodology of decision-making provision of information, the analysis of information and has been complemented by the recognition of the the prediction of consequences. While lack of scientific precautionary principle, which recognises the uncertainties certainty is linked to environmental impact assessment, associated with the prediction of environmental impacts. the precautionary principle creates something in the The principle – as we shall see – seeks to impose a nature of a bar to a decision with an outcome whose methodology of decision-making upon decision-makers environmental consequences are unclear or uncertain. so that inadvertent and unforeseeable damage to the While this uncertainty remains, the principle seems to environment does not occur. contain a simple mandate: do not go ahead and interfere with the environment if you are unsure about the Information and public participation environmental consequences. The need to adopt an integrated and co-ordinated approach to development planning so as to achieve a Transforming principles into rules degree of environmental protection was recognised at Stockholm (principle 13). This was endorsed at Rio; The outcome intended to be achieved by any however, much greater emphasis was placed not only upon environmental legal system in 2003 is sustainable interstate co-operation and the concept of a global development, which is supported by the range of principles partnership (principles 7 and 9), but also upon public discussed above. How these principles are incorporated participation in its various forms as an element of a in a legal system depends fundamentally upon the nature national environmental legal system (principle 10). In and structure of the national legal system in question. terms: The way in which the rights, duties and liabilities which form the structure of the legal system are enforced also ‘Environmental issues are best handled with the depends upon the intricacies of the legal system in participation of all concerned citizens, at the relevant question. These may be constitutional, regulatory, based level. At the national level, each individual shall have upon economic incentives or disincentives, structured as appropriate access to information concerning the liability rules according to the principles of the common environment that is held by public authorities, law and civil law, or enforced through the penal system by including information on hazardous materials and criminal sanctions. In addition, there are no doubt other activities in their communities, and the opportunity mechanisms by which these principles are given effect to participate in decision-making processes. States through this system. shall facilitate and encourage public awareness and However, an environmental legal system is structured, participation by making information widely available. and whatever are the mechanisms for its enforcement, the Effective access to judicial and administrative principles which have been discussed here are reflected proceedings, including redress and remedy, shall be directly or indirectly within the detail of the system. What provided.’ (principle 10) is particularly significant about these principles is the underlying notion that everyone – including corporations, This very comprehensive statement of the principle is governments, courts and legislatures – has responsibility complemented by the use of environmental impact in that wide sense for the quality of the environment and assessment as an instrument of a national legal system the way the natural resources of the environment are (principle 17) together with the application of the managed. Each person and each institution may well play precautionary principle (principle 15). The Draft Covenant a different part in discharging this responsibility. similarly incorporates the principle of public participation Fragmentation leads to divided responsibility while (Art. 12(3)–(7)), the need for environmental impact integration leads to common responsibility – hence the assessment (Art. 37) and the precautionary principle (Art importance of integrated process, integrated substance 7). and integrated outcome. This approach can be considered from the perspective Precautionary principle of three jurisdictions. The Constitution of the Union of Of the three principles, it is probably the precautionary India contains four significant provisions: every person principle which is the most difficult to understand and has the fundamental right to life and personal liberty (Art. apply. It is, in addition, stated in different terms in the 21); every person has the fundamental right to move the various instruments. The wider expression is in Art. 7 of Supreme Court for the enforcement of a fundamental right the Draft Covenant: (Art. 32); the state is directed to endeavour to protect and improve the environment (Art. 48A); and it is the ‘Lack of scientific certainty is no reason to postpone duty of every citizen to protect and improve the natural action to avoid potentially serious or irreversible harm environment (Art 51A). This interrelated collection of to the environment.’ principles, rights and duties has enabled the Supreme Court of India to determine that the precautionary This is – as already suggested – a methodology of principle and the polluter-pays principle have become part decision-making. Like environmental impact assessment, PRINCIPLES OF A CONTEMPORARY ENVIRONMENTAL LEGAL SYSTEM – FISHER ::: ELM 15[2003] 6 353

12 of the law of India. This might well be of little practical Conclusion consequence in the absence of the principle of public participation given effect by the fundamental constitutional Despite the diversity of approach demonstrated by the right granted to every person to take an issue to the Supreme three different jurisdictions of India, South Africa and the Court. European Union, it seems reasonably clear that the According to the Constitution of the Republic of principles recognised by the international community to South Africa, everyone has the right to an environment be appropriate for the achievement for sustainable that is not harmful to their health or well-being, and to development lie at the foundations of these three systems. have the environment protected for the benefit of present By way of a summary let us reiterate these principles. The and future generations (s. 24). This reflects the principle outcome is sustainable development. There are seven of intergenerational equity and, to some extent, the principles of substance, namely development, conservation, principles of conservation and prevention. It is, however, intergenerational equity, prevention, restitution, polluter-pays a human right, and consistently with this it is supported and user-pays. There are five principles supporting the by the power conferred upon a court to provide a remedy methodology of decision-making about substance and the for an infringement of a right on the application of anyone achievement of the outcome, namely co-operation and acting in the public interest (s. 38). While the state is consultation, information, public participation, environmental bound by these provisions, it is the capacity of an impact assessment and the precautionary principle. individual person ‘to assert their rights against the State All of these principles are part of the concept of and against other individuals’13 – the principle of public integration directed at sustainable development. There participation – which gives credibility to such a human exists therefore a system of integration of process, of right. substance and of outcome. Despite – or perhaps because The structure of the Treaty on European Union is of – the large number of persons and institutions with a different. Provision is made for a policy on the environment variety of functions involved in the system, the (Art. 130r). The policy is guided by the pursuit of four environment and the natural resources of the environment objectives (Art. 130r(1)): are the responsibility of no one person or institution in particular, but are rather the responsibility of everyone • preserving, protecting and improving the quality of and of every institution in general. This is so at local, the environment regional, international and even global levels of • protecting human health involvement. Humankind is thus responsible for the • prudent and rational utilisation of natural resources environment. Responsibility is achieved through the • promoting measures at international level to deal with recognition of human rights in various ways supported by regional and worldwide environmental problems. the imposition of duties on humankind. An environmental right – if there is one – is simply the emanation of this The policy then aims at ‘a higher level of protection’ collection of human rights, duties and responsibilities. responding to a set of principles. Thus, the policy: An approach such as this seems to have influenced the outcomes at Johannesburg in 2002.14 There was, first ‘shall be based on the precautionary principle and of all, recognition that sustainable development requires on the principles that preventive action should be ‘a long-term perspective and broad-based participation taken, that environmental damage should as a priority in policy formulation, decision-making and implementation be rectified at source and that the polluter should at all levels’ (para. 26). This specifically includes the private pay. Environmental protection requirements must be sector, which itself includes the corporate sector (paras integrated into the definition and implementation of 27 and 29), but it is not, of course, restricted in this way. other community policies.’ (Art. 130r(2)) In this sense the environment is the responsibility of humankind in general, linked with the notion of human These objectives are achieved and the principles applied rights in relation to the environment. Those at Johannesburg through the range of directives enacted by the European expressly formulated the approach in these words: Union, and given effect through the national laws of the member states. The principles set out in the Treaty thus ‘We assume a collective responsibility to advance and represent the basis upon which the laws of the European strengthen the interdependent and mutually Union and, through that system, the laws of member states, reinforcing pillars of sustainable development – are developed. economic development, social development and environmental protection – at local, national, regional and global levels.’ (para. 5)

The diversity of principles driving a contemporary environmental legal system is directed simply at ensuring 12 Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647. such a collective responsibility. 13 P Lazarus, I Currie and R Short, ‘The Legislative Framework: Environmental Law, Investment and Industrial practice’, in L Bethlehem and M Goldblatt (eds), The Bottom Line: Industry and the Environment in South Africa (Cape Town, University of Cape Town Press, 1997), p. 14 . 14 See n. 1 above. 354 ELM 15[2003]6 : NVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN

The environmental dimension to company law modernisation

Claire Howell and Dr Ben Pontin*

Burges Salmon Environmental Law Research Unit, Faculty of Law, University of the West of England

Government proposals for modernising company law practical measures with this purpose in mind include recent contemplate companies being guided by environmental developments in environmental taxation,4 environmental considerations to a degree that would go beyond management systems5 and environmental liability.6 To this pioneering ‘green accounts’ legislation enacted in list must now be added proposals for an ambitious Denmark. This article examines the policy aims underlying integration of environmental considerations within the these proposals and assesses their likely impact in practice. core principles of company law contained in the Particular attention is given to the operating and financial Government White Paper, Modernising Company Law.7 review (OFR) which large companies would be obliged to What is the Government aiming to achieve with these prepare and publish on an annual basis to inform interested proposals, and on what factors is progress in this area parties of their environmental profile. It will be argued likely to be dependent? that these proposals, in the context of Britain’s infrastructure of active environmental non-governmental Company law’s environmental dimension: a organisations, will significantly strengthen the pressure means to what end? for companies to respond to environmental concerns. Two proposals for reform contained in Modernising Introduction Company Law are particularly pertinent to present concerns.8 The first is the proposed codification of For much of the time since company law’s limited liability directors’ duties to include a requirement that all directors revolution during the Victorian era, Parliament has have regard to the impact of their actions on the regulated companies’ environmental risks by means of environment, where material to the long-term success of criminal-administrative sanctions similar to those used in the company. The second is a duty to disclose many other fields of social regulation.1 The modern legacy environmental information that is material to the operating of these ‘external’ or ‘command-and-control’ interventions and financial report (OFR) which companies are selectively is a regulatory landscape heavily reliant on public required to prepare and publish on an annual basis.9 If authorities in the management of companies’ implemented, these proposals would introduce an environmental (and indeed other) risks. Prompted by the environmental dimension to company law that is increasing complexity, urgency and global scale of today’s noticeably broader than that pioneered by the ‘green environmental challenges,2 commentators from a wide accounts’ legislation enacted in Denmark in 1995.10 In range of backgrounds have argued for more dynamic the Danish legislation, reform is confined to the issue of approaches to regulation, placing greater emphasis on disclosure (there is no equivalent general director duty), harnessing the company boardroom’s capacity for applicable only to large manufacturing companies which creativity, innovation and problem solving.3 Examples of are the most visible polluters. By contrast, disclosure under

* This article is an adapted version of a paper presented to the Society 4 For example, the Finance Act 1996, ss 39–71, introducing the landfill of Legal Scholars, Annual Conference, 17 September 2003. The authors tax. See, more generally, A Ogus and I Abbot, ‘Sanctions for Pollution are very grateful to Professor John Parkinson and Professor Jill Poole – Do we have the right regime?’ (2002) 14 Journal of Environmental for their comments on an earlier draft. Law 284. 1 The foundational environmental laws enacted in the decades following 5 Council Regulation 1836/93 OJ 1993 L 184.a voluntary framework for the Limited Liability Act 1855 include the Alkali Act 1863 (chemical environmental management and audit systems (EMAS), which came pollution), the Public Health Act 1874 (waste on land) and the Rivers into force in 1995. Pollution Prevention Act 1876. For an analysis of environmental 6 The latest development being the ‘Proposal for a Council Directive on problems and legislative responses in the second half of the nineteenth Environmental Liability with regard to the Prevention and Restoration century, see Wohl, Endangered Lives (Harvard University Press, 1983). of Environmental Harm’, COM 2002 17 final. 2 See generally, Beck, Risk Society (Sage, 1992); Teubner, Law as an 7 Cm 5553 (2002). There is as yet no clear timetable for implementing Autopoietic System (Blackwell, 1993). these proposals: see n. 78 below. 3 Cf. the accounts of Beck and Teubner (ibid.), which make contrasting 8 See the draft clauses of the Companies Bill attached to the White use of the cognitive and financial resources at the disposal of companies Paper, ibid., vol. II, Sched. 2. in this setting. This literature is helpfully surveyed in Richardson, 9 The meaning of materiality in this setting is discussed below. Environmental Regulation through Financial Organisations (Kluwer, 10 Act 403 of 14 June 1995 (Green Accounts); Statutory Order of the 2002), pp. 9ff. For a more ethical perspective, see Singer, The Edges Ministry of Environment and Energy 975 of 13 December 1995 (duty of the Field: Lessons on the Obligations of Ownership (Beacon, 2000). of certain listed activities to draw up green accounts). ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN ::: ELM 15[2003]6 355 the domestic proposals is broader in scope; it embraces ‘framework of company law which promoted the in principle the banks which finance manufacturers, the competitiveness of British companies, struck the insurers which underwrite their risks, and indeed any other proper balance between the interests of those large service industry with environmental impacts. concerned with companies, in the context of The aims underlying these proposals merit close straightforward, cost-effective and fair regulation, and scrutiny. Unlike previous instances in which environmental promoted consistency, predictability and considerations have been integrated into commercial law transparency in the law.’16 mainly at the initiative of government environment departments,11 the environmental dimension to company Given the expansive remit and tight time constraints,17 it law reform emanated from the Company Law Review is perhaps unsurprising that the Steering Group chose Steering Group, a body appointed by the Department of not to set out in any systematic way the case for the Trade and Industry to look into modernising UK company environmental dimension to reform. Nonetheless, it law. The Steering Group’s commercial perspective on appears from its initial reports that the Steering Group public policy in this field is reflected in its reports, which formed the view early on that environmental themes were depict improvement in environmental performance as an most relevant to three aims in particular: promoting the instrument in the pursuit of more profitable, competitive competitiveness of British companies; striking the proper and broadly effective British companies.12 However, on balance between the interests of those affected by publication of the White Paper, the Government stated companies; and transparency. That view crystallised in the that the aim of the reforms was also to promote, in broader course of the extensive consultation process, which elicited terms, the principle of ‘sustainable development’.13 This the views of prominent company practitioners, academics indicates a shifting policy agenda in which environmental and trade organisations, as well as specialist environmental objectives are coming increasingly to the fore.14 What are organisations. The main arguments under these three the principal ‘company law’ and ‘environmental law’ headings are discussed immediately below. justifications for reform, and what does sustainable development add to the debate? Company competitiveness and the environment

Making ‘good’ company law Companies which espouse environmentally responsible practices typically do so on the basis of commercial good The most focused company law justification for reform in sense. Shell UK’s award-winning annual report, How do this area is that offered by the Company Law Review we stand? People, Planets and Profits 2000 claimed that Steering Group in its reports, Modern Company Law for a the company had chosen responsible practices because Competitive Economy: the Strategic Framework and ‘it makes good business sense’;18 similarly, the Co- Developing the Framework.15 The Steering Group was operative Bank in its annual sustainability report of 2003 appointed by the Government in 1998 to advise on the is emphatic that the company’s policy of environmentally creation of a: responsible business practice ‘is not being pursued for altruistic reasons’.19 The commercial logic underlying environmentally responsible corporate behaviour would appear to have exerted considerable influence over the Company Law Review Steering Group which considered 11 The closest comparison is with the EMAS Regulation, n. 5 above. This was devised by Directorate General XI of the European Commission, that Britain’s most competitive companies owed their dedicated to environmental and consumer protection issues. Its success to their responsible policies. By providing less implementation is administered by the Department for Environment, responsible companies with clearer legal signals as to the Food and Rural Affairs. 12 Modern Company Law for a Competitive Economy: The Strategic link between environmental and social performance and Framework (DTI, 1999); Modern Company Law for a Competitive profitability, an increasing number of British companies Economy: Developing the Framework ( DTI, 2000); Modern Company would become competitive.20 More specifically, as Law for a Competitive Economy: Completing the Structure (DTI, 2000); Modern Company Law for a Competitive Economy: Final Report (DTI, Professor Parkinson noted in his reflections on the Steering 2001). This is not to suggest that the Steering Group’s analysis was Group’s endeavours in this setting, businesses can save purely economic: see the discussion of aims, below. 13 Modernising Company Law, n 7 above, para. 4.32. See also the reference to the environment as ‘first amongst equals’ in relation to other social interests to which companies would be required to have regard under the Government’s proposals: ibid., para. 4.31. It is understood that 16 This is the Steering Group’s own summary of the Government’s more the references to sustainable development and other elements of expansive statement, Modern Company Law for a Competitive environmental policy were inserted at the request of the then Economy: Final Report, n. 12 above, para. 1.3. The summary is apt for Environment Minister, Michael Meacher. The collaborative dimension present purposes in that nowhere in the government statement of to reform (involving the DTI and DEFRA) has emerged even more terms was mention explicitly made to the environment. strongly in recent statements by Patricia Hewitt, n. 14 below, and DEFRA 17 Once appointed (on a part-time basis), the Steering Group had under and DTI White Paper, n. 27 below. three years in which to review 800 pages of legislation and to make 14 See, in particular, Patricia Hewitt’s speech to the Green Alliance recommendations on reform. Environment Forum, 14 July 2003. Also noteworthy is the emphasis 18 P. 1. This report won the award of Association of Chartered Certified placed on the environment relative to other social interests, in The Accounts ‘Best Sustainability Report 2000’. Operating and Financial Review Working Group: a consultation 19 Seehttp://www.cooperativebank.co.uk/ethics/partnership2002/pr/ document (DTI, 2003). The Working Group’s observations are ecological_sustainability. html. discussed below. 20 See, e.g. Modern Company Law for a Competitive Economy: The 15 See n. 12 above. Strategic Framework, n. 12 above, para. 5.1.9. 356 ELM 15[2003]6 : ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN substantial costs by reducing waste and energy environmental performance, then the evidence in support consumption, or by preventing environmentally harmful is more compelling. Emerging regulatory trends not impacts which lead to significant clean-up liabilities and discussed by the Steering Group suggest that many major expenditures in complying with tightened regulatory businesses of the future will be operating in a government- laws.21 These potential savings are in addition to consumer regulated market in which there are greater financial good will imputed to companies perceived to be respecting incentives to act benignly in respect of the environment, the environment, or the ‘market penalties’ of failure to do and penalties for failing to do so.27 For example, there is a so which take their most draconian form in consumer reasonable prospect that environmental taxes will become boycotts of a company’s products. less tentative and ad hoc than they were in the middle of Evidence in support of the existence of a connection the 1990s,28 and there is now a Treasury policy between responsible business practice and profitability is commitment to shift the burden of taxation onto so-called strong in certain settings (for example, in relation to environmental ‘bads’.29 Given these and other similar employment practices).22 Yet there is very little equivalent indications that environmental regulation is slowly getting evidence applicable to the environment.23 In fact, there is either tougher30 or smarter,31 it is realistic to maintain that a real question mark surrounding a fundamental robust environmental performance beginning now could assumption underlying the Steering Group’s analysis to be important to the competitiveness of Britain’s companies the effect that companies bear the full environmental cost for the future.32 This is, of course, to say nothing of the of their activities. When waste is cheap to dispose of – additional pressure that may be exerted by consumers and when the price of mainstream energy sources does demanding responsible business practices on the basis of not reflect their environmental costs – net savings do not knowledge gathered as a direct or indirect result of necessarily follow from behaving responsibly. There is thus government market interventions.33 a need for caution before any reliance is placed on a generalised link between environmentally responsible Balancing the interests of those affected by practices and profitability, which is further reinforced by companies a number of other features of the wider legal framework which mean that environmental costs are not in practice One of the most conspicuous and controversial aspects fully (or even substantially) borne by businesses and their of the Steering Group’s work was the philosophical debate customers; i.e. they are externalised. Notable amongst it reopened concerning the proper scope and purpose of these are the difficulties individuals find in attaching company law. Central to this debate was the question, ‘in liability for environmental harm under the tort system,24 whose interests should modern companies be run’? Three the limited progress that is being made in implementing competing frameworks for balancing relevant interests Britain’s contaminated land legislation,25 and concerns that were identified.34 The first framework, ‘shareholder value’, prospective public law regulations are under-enforced.26 rests on a narrow concept of shareholder interests: it However, were the Steering Group to have based its attributes weight to maximising wealth for existing arguments on a longer-term link between profitability and shareholders in the short and medium term, thus downplaying the importance of the longer-term interests of shareholders present and future and, of course, all ‘third

21 See J Parkinson, ‘Inclusive Company Law’, in de Lacey, The Reform of United Kingdom Company Law (Cavendish, 2002). p. 47. The importance of environmental liabilities (but not the other issues signposted by Professor Parkinson) to company wealth is noted in the Institute of Chartered Accountants in England and Wales, Internal 27 See Patricia Hewitt’s speech, n. 14 above, for a pithy statement of Control – Guidance for Directors on the Combined Code (Accountancy policy intent on this point. See further Changing Patterns: UK Framework Books, 1999). for Sustainable Consumption and Production (DEFRA/DTI 2003), p 22 In one influential study, unimaginative employment practices were 34 (‘There will…be rewards in the marketplace for companies who reported to explain the lack of competitiveness of British companies innovate to reduce their direct environmental impact and the relative to their European counterparts: see Tomorrow’s Company: the downstream impact of the products and services they deliver’). Role of Business in a Changing World (RSA, 1995). 28 Consider, for example, the Chancellor’s Pre-budget report 2002 23 For a rare study, focusing on boardroom perceptions, see M Reneger, (Stationery Office, 2002), which announced that from 2004/2005, ‘Industrial sustainability: policy and practice in the UK manufacturing the landfill tax would increase by at least £3 per annum, from the then industry’ ELM 14[2002]2 82. The author discovered that for every figure of £13 per ton, up to £35 per ton. respondent who considered the environment to be important to 29 Treasury, Tax and the Environment (2002). commercial success, another considered it unimportant (at p. 83). 30 For example, new magistrates’ sentencing guidelines: see Stookes (ed.), Similarly, no clear correlation between commercial success and Costing the Earth: information for sentencers (Magistrates’ Association, responsible behaviour was found in the Steering Group-commissioned 2002). literature review, Literature Survey on Factual, Empirical and Legal Issues; 31 A good example is the pioneering UK emissions trading scheme, dealing available at www.dti.gov.uk/cld/review.htm. with carbon dioxide emissions from large companies, which is 24 J McLaren, ‘The Common Law Nuisance Actions and the Environmental administered under the auspices of the UK Emissions Trading Group, a Battle: Well Tempered Swords or Broken Reeds?’ (1972) 10 Osgoode non-statutory private/public partnership: see www.uketg.com. Hall Law Journal 505; J Steele, ‘Private Law and the Environment: 32 Not least because of the ‘first mover advantages’ that may flow from Nuisance in Context’ (1995) 15 Legal Studies 236. company laws encouraging businesses to take a long-term view. 25 A Hobley and A McCann, ‘Contaminated land in the UK – the current 33 Consider, for example, the part that disclosure of candid information position’ ELM 15[2003]2 79. relating to a company’s environmental record may play in altering the 26 P De Prez, ‘Biased enforcement or optimal regulation? Reflections on market context within which it operates: see n. 69 and associated text. recent Parliamentary scrutiny of the Environment Agency’ ELM 34 See especially Modern Company Law for a Competitive Economy: 13[2001]3 145. Developing the Framework, n. 12 above, paras 2.7–2.18. ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN ::: ELM 15[2003]6 357 party’ interests.35 The second framework, ‘enlightened confined almost exclusively to recent past financial shareholder value’, promotes the concept of companies performance. As has already been mentioned, some continuing to be run in the interests of shareholders, but companies choose to disclose information relating to their attributes value to cultivating constructive relationships ‘soft’ assets and resources, such as their environmental between the company and other constituent interests. profile.43 However, because they are not required to do The third framework, ‘pluralism’, advocates companies so, whether under company or indeed freedom of being run in the public interest, with the interests of non- information legislation,44 the Steering Group considered shareholding parties capable of overriding those of that existing law lacks transparency.45 shareholding parties where there is conflict. Crudely, Transparency is a justification for reform that overlaps depending on which of these frameworks prevailed, the with other aims discussed above. It has been argued that environment would be excluded, included, or prioritised. a company whose decision making processes are The Steering Group’s preference was for including the transparent will typically be run more effectively than one environment within the scope of company law. Part of the which is not, thus contributing to their competitiveness.46 rationale for this overlaps with the commercial logic, noted In particular, the process of gathering information for above.36 Another part of the rationale, however, relates to eventual disclosure may facilitate better communication more sociological arguments concerning the changing within the company, as between employees, management expectations which society has of companies.37 This is and directors. Furthermore, the act of disclosing particularly true in respect of the increasing expectation information contributes to the accountability of that individuals have of being included in decisions that companies,47 allowing shareholders and indeed other affect them, regardless of whether the decisions are of a interested parties to be included in the scrutiny of a classically ‘public’ or ‘private’ in nature.38 The environment company’s performance. Finally, full disclosure enables epitomises this expectation. Individuals perceive that they capital markets to arrive at a realistic value of the have a clear enough stake in companies’ environmental company.48 This increases the likelihood that investment performance to justify bringing private criminal decisions will be made on an enlightened basis of the long- proceedings while governmental regulatory bodies stand term health of a company, having regard to all relevant on,39 or insisting on being consulted and even having a considerations, rather than short-term pressures of the place at the negotiating table before a business decision kind that are a frequent source of instability in this setting. affecting the environment is taken.40 Whilst the Steering Group did not elaborate on this theme, it is nonetheless Making ‘good’ environmental law right that it situated company law reform in the context of the society to which companies are ultimately As mentioned towards the outset, the White Paper, accountable and from which the law derives its legitimacy.41 Modernising Company Law differs from the Steering Group’s analysis in that it adds to the latter’s Transparency predominantly (though not exclusively) commercial justifications for reform the environment-oriented concept All companies are required by statute to publish annual of ‘sustainable development’. Sustainable development has accounts.42 The profit/loss account and the other been aptly described as the principal organising concept information contained in these public documents are of UK environmental policy.49 Whilst the concept has received some scholarly attention in relation to certain specific areas of company law (e.g. financial services),50 there has been very little scholarly treatment of it in the present context. How might sustainable development 35 Adherents to this view ‘expect corporate managers to maximise profits and to further the interests of shareholders without regard to the needs justify company law reform and in what ways do justifications of employees or the communities in which businesses operate’: see Singer, n. 3 above, p. 4. 36 Cultivating wider relationships can be good for long-term profitability. 37 See the reference to the importance of evolving ‘societal values’, in Modern Company Law for a Competitive Economy: The Strategic 43 See e.g. the examples above, n 18. Another good example is Scottish Framework , n. 12 above, para. 5.1.3. Power, Environmental and Social Impact Report 2002/2003; available 38 There is an extensive literature concerning the eroding distinction at www.scottishpower.com. According to one estimate, ‘soft’ assets between the ‘public’ and the ‘private’ in legal terms: see, in particular, typically account for 70 per cent of a company’s value: see Trade and Oliver, Common Values and the Private Public Divide (Butterworths, Industry Committee Sixth Report 2002/2003, The White Paper on 1999). Modernising Company Law, HC 439 (Stationery Office, 2003). 39 Hart v Anglian Water [2002] ENDS Report 54 (£200,000 fine as a 44 Council Directive 90/313/EEC on access to environmental information result of a private prosecution where the Environment Agency decided applies only to information held by public authorities. not to take action). 45 Modern Company Law for a Competitive Economy: Developing the 40 See the experience of Associated British Ports of negotiations with Framework, n. 12 above, para. 5.19. environmental interest groups prior to seeking to develop land 46 Parkinson, n. 21 above, p. 52. supporting important natural habitats: P Barnham, ‘The Habitats 47 Modern Company Law for a Competitive Economy: Strategic Framework, Directive and Port Development’ ELM 15[2003]5 229. n. 12 above, para. 5.1.4.4. Interestingly, the Steering Group considered 41 See, generally, Parkinson, Corporate Power and Responsibility: Issues that it was endorsing pluralist reasoning in this context. This point will in the Theory of Company Law (Oxford University Press, 1993); and be returned to in the context of ‘environmental law’ justifications, below. Singer, n. 3 above. 48 Parkinson, n. 21 above. 42 Companies Act 1985, Part VII. Additional requirements are imposed 49 J Steele and T Jewell, ‘Law in Environmental Decision-Making’, in Jewell as a condition of listing: e.g. Council Directive 82/121/EEC (interim and Steele (eds), Law in Environmental Decision-Making (Oxford reporting). University Press, 1998). 358 ELM 15[2003]6 : ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN based on sustainable development differ from those solutions to environmental problems is contained in the discussed above in relation to the Steering Group? Government’s emerging sustainable consumption and Addressing these questions with reference to the production policy. In Changing Patterns: A Framework for company law White Paper – the obvious starting-point - Sustainable Consumption and Production, the is problematic, for there the concept of sustainable Government commits itself to the delivery of: development is neither defined nor its application elaborated on. Equally silent on this issue is the UK’s ‘Continuous economic and social progress that current sustainable development strategy, A Better Quality respects the limits of the Earth’s eco-systems, and of Life: the UK Strategy for Sustainable Development.51 meets the needs and aspirations of everyone for a Even the latest environmental policy statements that post- better quality of life, now and for generations to date the company law White Paper make no direct come.’55 reference to any interrelationship between environmental policy and law and company policy and law.52 Within the This offers a different slant on the justifications for reform academic literature on this subject, Dr Richardson’s account of the Company Law Review Steering Group. For whereas of sustainable development as it applies to the financial the Steering Group considered that the environment may service sector is perhaps the most insightful.53 Sustainable or may not be relevant to a company’s decisions, as development’s principal relevance to financial services, determined on a case-by-case, contingent basis, Changing according to Richardson’s account, derives from its concern Patterns contemplates an inherent connection.56 with providing ‘macro-level policies’ that tackle the Sustainable development is an aim that demands more of ‘underlying causes’ of environmental problems (which, by companies and the law than the pursuit of competitiveness his account, can usually be traced back from the visible in itself. What is demanded is that competitiveness is perpetrators of harm to the institutions lending them money secured at all times subject to ever pervasive environmental and the companies underwriting their risks).54 Drawing on constraints. Something of a bolt on extra for the Steering this analysis, one broad aim of sustainable company law could Group, sustainable development would require of be to supply company boards with a framework within which modernised company law a deeper and principled progressively to transform their firm’s production methods, engagement with environmental considerations. land use choices and other activities towards reducing Annex 2, Changing Patterns, sets out in more practical environmental pollution and conserving natural resources. terms a number of ‘action areas’ whereby businesses can Richardson’s analysis places greatest emphasis on the contribute to sustainable development. Some of these substantive outcomes of commerce, with little stress on relate to environmental management systems and the more process-oriented issues (i.e. balancing interests and scope for clearer management benchmarks against which transparency) which concerned the Steering Group. progress in delivering environmental benefits can be However, sustainable development is deeply concerned measured. Others relate to production processes which with process issues as crucial to the task of ensuring that consume less energy and water than at present and result decision making procedures are appropriate to the in increasingly benign emissions to the environment. complexity and highly political nature of environmental Innovation in ecologically sympathetic design is also a decisions. Wide participation in the decision making critical component of a sustainable company on this process is of particular importance. The possible relevance analysis, as is ‘supply chain management’ in which the of sustainable development’s substantive and procedural business insists on ‘more demanding standards of dimensions is elaborated below. sustainability from “upstream” users’. Whilst (to reiterate) the link with company law modernisation is not explicitly Sustainable development as a matter of made at this or indeed any juncture in Changing Patterns, substantive environmental outcomes: the the checklist is nonetheless useful in highlighting the ‘greening’ of consumption and production breadth of the possible range of environmental considerations that could, in principle, be incorporated One of the best current illustrations of sustainable within the fabric of company law. development’s engagement with ‘macro-level’ policy However, it is not only artificial but dangerous to explore company law’s possible environmental dimension in abstract from the established body of so called command and control or direct regulatory laws aimed at 50 See Richardson, n. 3 above. regulating a company’s environmental impacts. For 51 Cm 4345, Stationery Office, 1999. 52 This is particularly true of the emerging Government strategy for instance, it may well be feasible for company law reforms sustainable consumption and production: see the DEFRA and DTI paper, Changing Patterns: UK Government Framework for Sustainable Consumption and Production, above n 27. The background to this is the Johannesburg Declaration on Sustainable Development, which contains a commitment to ‘changing consumption and production 55 Above, n 27, p 10. patterns’ (para. 11). The Declaration proceeds to adumbrate a ‘duty’ 56 The thrust of Changing Patterns throughout is the need to on private companies to ‘contribute to the evolution of … sustainable systematically ‘decouple’ economic growth from environmental damage communities and societies’ (para. 27) and there is thus a clear (e.g. p 6). This echoes the Sustainable Development White Paper’s interrelationship of environmental and company themes to explore here. maxim: ‘Growth based on environmental damage is not sustainable’: A 53 Above, n 3. Better Quality of Life: the UK Strategy for Sustainable Development, 54 Ibid, p 7. n. 51 above, para. 6.3. ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN ::: ELM 15[2003]6 359 to be introduced which aspire to improving production administrative decision-making range from submitting processes, or encouraging innovation, but would this written representations to which regulatory authorities would risk costly over-regulation were it simply to duplicate must have regard, to giving (and cross-examining on) or mimic the direct regulatory controls aimed at exactly evidence before public inquiries.61 Furthermore, some the same ends? The Environment Agency for England and regulatory bodies are directly accountable to local or Wales touched on this important concern in its national electorates.62 Aspects of these and other more submissions to the Steering Group.57 Its defence of an court-based developments have recently been environmental dimension to company law reform rested consolidated by the UK’s incorporation of the Aarhus on the potential for it to complement (rather than rival) Convention on Participation in Environmental Decision direct regulation. The Environment Agency’s logic is that Making.63 These developments are at the heart of the direct regulation tends to be pre-occupied with minimum concept of sustainable development.64 general standards; by contrast, company law reform would Advocates of some market-oriented regulatory differ in facilitating firm- or industry-specific ways of alternatives have shown a degree of ambivalence towards achieving, in principle, higher standards. Of course, nearly these issues of participation and accountability.65 This is a decade earlier, the Government had echoed this because, for them, the primary goals of regulatory reform distinction between direct regulation and market-based are effectiveness and efficiency. Apart from its indifference alternatives (such as company law reform) in reasoning that: towards what individuals increasingly view as a legitimate expectation,66 such a stance also neglects the potentially ‘Direct regulation can be complicated, slow to devise complementary relationship between better (in the sense and enforce and, in pursuit of any given environmental of more participatory) processes and better (in the sense objective, may impose greater costs on industry than of more effective and efficient) decision-making economic instruments…Economic instruments [and outcomes.67 It is therefore telling that in the company law other market mechanisms] are an inherently more White Paper, Modernising Company Law, it appears that flexible and cost-effective way of achieving the Government is thinking of sustainable development environmental goals’.58 in procedural terms. This is indicated by the fact that the main reference to sustainable development is in the Thus, in these broad terms at least, the problem of over- context of making company decision-making more regulation is surmountable. Although the devil will be in transparent and accessible from the perspective of the detail, company law reform can in theory be designed shareholders and wider interests.68 To what extent does to complement a wider mix of regulatory instruments which converge around the sustainable development theme.

Sustainable development as participation in 61 There are considerable variations within the sphere of the environment. decision-making procedures The fullest opportunities to participate in administrative decision- making arise in the context of town planning: see Jewell and Pontin, One of the regulatory challenges arguably peculiar to the ‘Access to Environmental Justice in the United Kingdom’, in Ebesson (ed.), Access to Environmental Justice in the European Union (Kluwer, environment (which sets it apart from other facets of 2002). corporate social responsibility) is the extent to which 62 For example, local planning and environmental health authorities, and environmental problems are shrouded in scientific the Secretary of State for the Environment; cf. QUANGOs such as the 59 Environment Agency and English Nature. uncertainty. This challenge is deepened by the value- 63 UN(ECE) Convention on Access to Information, Public Participation laden nature of the judgments which underlie decision- in Decision Making and Access to Justice in Environmental Matters making in this field.60 An important feature of direct (adopted 25 June 1998). 64 ‘Environmental issues are best handled with the participation of all regulation is that in most instances it provides a political concerned individuals, at the relevant level’: Rio Declaration on and legal framework for interested members of the public Environment and Development (United Nations, 1992), Principle 10. to be involved in deciding these controversial decisions. 65 Cf. RB Stewart, ‘Regulation, Innovation and Administrative Law: A Conceptual Framework’ (1981) 69 California Law Review 1255 . Opportunities for individuals or groups to ‘participate’ in 66 See J Parkinson, ‘Disclosure and Corporate Social and Environmental Performance: Competitiveness and Enterprise in a Broader Social Frame’ (2003) 3 JCLS 3 at 34–35, for a helpful analysis of legitimacy in this context. 67 This is discussed in J Steele, ‘Participation and Deliberation in 57 See www.environment-agency.gov.uk/commondata/105385/ Environmental Law: Exploring a Problem-Solving Approach’ (2001) 21 company_law.pdf. OJLS 415 at 438–440. The idea that deliberation involving the public 58 This Common Inheritance, Second Year Report (Cm 2068, 1992), produces better environmental decisions underpins the recent national para 3.43-3.44. debate on whether or not to lift the moratorium on the commercial 59 A good example is provided by climate change. Thus, it is technically cultivation of genetically modified crops: see Agriculture and uncertain that the world is getting warmer – its causes are not known Environment Biotechnology Commission, GM Nation? The findings of with certainty, nor are its likely implications (given that the climate the public debate (2003); available at www:gmpublicdebate.org. One system may adopt what scientist term feedback or counter-measures). significant finding was that the process of debate changed the opinions Another good example is the uncertainty relating to the impact of of 66 per cent of the participants. This is a good reflection of the genetically modified organisms on biodiversity (see n 67 below). See, dynamic aim of the deliberative debate model, i.e. to expose individual generally, the Royal Commission on Environmental Pollution, Twenty- participant’s opinions to challenge through dialogue, with a view to first Report, Setting Environmental Standards, Cm 4053 (2000). establishing a consensus on the best solution to the problem. See, 60 E.g judgements relating to the level of environmental quality demanded further, B Pontin, ‘Deliberating on the GMO controversy’ ELM by society, or the degree of risk society is prepared to tolerate: see 14[2002]3 131. Royal Commission on Environmental Pollution, ibid. 68 N. 13 above. 360 ELM 15[2003]6 : ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN sustainable development entail more than the inclusion directors can assess whether an item is material to a of non-shareholding interested parties in the decision company … includ[ing] the company’s impact on the making process (as argued for by the Steering Group)? environment’.71 Published in June 2003, The Operating The relationship between participation in connection and Financial Review Working Group: a consultation with sustainable development and the Company Law document72 sets out for consultation the Working Group’s Review Steering Group’s analysis is complex. preliminary findings. The following analysis concentrates Fundamentally, their purposes are different. The Steering first on the OFR dimension to the reforms, before turning Group’s justification for including individuals with attention to the issue of general directors’ duties.73 environmental interests within reformed company law is distinguished by the emphasis it placed on benefits that Environmental dimension to the OFR this could bring to businesses. Whilst participation (qua sustainable development) does not preclude businesses The Company Law Review Steering Committee benefiting from the process, its aim is to provide a recommended that the over-arching objective of the OFR cognitive framework facilitating business decisions which should be: are environmentally – as well as economically - sustainable. The distinction can be illustrated in the context of ‘to provide a discussion and analysis of the business environmental disclosure. Here, whereas a major goal of and the main trends and factors underlying the results participation would be to strengthen the external ‘green’ and financial position and likely to affect performance pressures that are brought to bear on a company, of in future…[s]o as to enable users to assess the inclusion within the Steering Group’s analysis, ‘it is not strategies adopted by the business and the potential part of [the]…objective to stimulate or strengthen the for successfully achieving them.’74 pressures themselves’.69 Is there a problem reconciling sustainable In preparing the OFR the board must consider such issues development’s emphasis on participation with the Steering as the environment and the company’s impact upon it. Its Group’s adherence to the shareholder supremacy principle report in the OFR will then be available to ‘users’. ‘Users’ and market democracy ideals underlying it? Not are not confined to shareholders – the traditional necessarily. Sustainable development recognises the value recipients of the director’s report and company accounts of markets, so long as these are tuned to delivering – but include others affected by the company such as environmental benefits. Participation in commercial employees, creditors, consumers and pressure groups. decision making of members of the public armed with Reporting in this way will in principle increase the relevant information and the desire to protect the transparency of performance. The OFR will allow environment is a potentially constructive means of tuning shareholders and users to become aware of the likelihood the market which is perfectly compatible with company of increased future liabilities due to the company’s law’s continued respect for the shareholder supremacy behaviour, which could result in loss to the company and principle. Thus, it would be wrong to see the difference the consequent reduction in shareholder wealth. It will between the Steering Group and sustainable development also indicate future strategy, opportunities and good as about the place of shareholder wealth as the governing practice. Unfortunately, the publicity associated with principle of company law; rather, it is about the practical transparency could act as an incentive not to make full reforms that are to be made to company law which ensure and frank disclosure. With the information supplied, that the wealth accruing to shareholders is real in the sense consumers, for example, could decide whether to buy that it is not at some hidden cost to the environment. the company’s goods or boycott them; creditors could judge whether to lend the company money; and Delivering the reforms shareholders could determine whether they wished to invest or sell their shares. If, due to the transparency As noted earlier, under government proposals contained created by the OFR, there were to be a boycott of its in Modernising Company Law,70 directors of all companies goods, loss of credit or reluctance to invest in the would have a duty to consider the impacts of their company, the directors would be in breach of their duty activities on the environment, where relevant to the long- to the shareholders to maximise shareholder wealth. term success of the company. In addition, companies over Consequently, although the directors’ duty is still owed a certain size would be required to compile and publish an annual OFR, containing information relating, where ‘material’, to the company’s environmental performance. In December 2002, the DTI set up a working group to 71 This and other terms of reference are set out at www.dti.gov.uk/cld/ term.pdf. develop ‘broad principles and practical guidance on how 72 N. 14 above. The document is available at www.dti.gov.uk/ofrwgcon.pdf. The consultation period closed on 19 September 2003. 73 The timescale for implementing the White Paper is unclear. It is anticipated that secondary legislation giving effect to the White Paper’s draft disclosure clauses will be put before Parliament early in 2004. A 69 Parkinson, n. 66 above, p. 7. Sustainable development can thus be bill dealing with other aspects of the White Paper is likely to be left understood as offering a justification for what is termed a ‘type 2’ until later that year, if not longer. model of disclosure: ibid, pp. 7–8. 74 Modern Company Law for a Competitive Economy: Final Report, n. 12 70 See n. 7 above and associated text. above, Annex D, draft clauses on the OFR. ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN ::: ELM 15[2003]6 361 only to the shareholders, society’s norms are being not merely the significant companies which must prepare adhered to indirectly in a very practical sense. an OFR. No matter how small the company, it can still This theory relies on members of society caring pollute or act in a socially irresponsible manner. Although enough about the environment to elicit the relevant it is proposed that eventually the duty to produce an OFR information and act on it (e.g. by refusing to deal with a should be extended to include a greater number of company behaving in an environmental damaging way). companies than at present, the conflict between greater Consumers cannot be forced to buy environmental transparency and the ‘Think Small First’ requirement of friendly goods, and they may be reluctant to do so if the the White Paper, which aims to reduce the burden on small goods are more expensive due to internalised anti- businesses, means that such a prospect must be polluting costs. In addition, a company that does not sell approached with caution. The objective of the directors’ directly to consumers or does not rely on a large public duties is that all directors will be encouraged to take a shareholding75 will be less accountable, and therefore the broader view of whom to consider when deliberating on OFR will have far less effect.76 However, no matter how the companies’ actions, no matter how small the company. large a public shareholding, it is not considered feasible to force shareholder intervention. It would be possible to Defining materiality for purposes of the OFR ‘enable’ shareholders to vote on environmental issues,77 but it is felt that a duty to intervene could not be imposed The decision as to what information will be included in upon them, since this could deter new investment. After the OFR is one for the directors. The Government does all, an advantage of being a shareholder with limited not intend to prescribe the content of the OFR. It hopes liability is that one can have a portfolio of investments; that this flexibility will encourage directors to integrate consequently, one does not have to monitor each environmental, social and employment factors into their company in which one holds shares. Compliance with the consideration of company policy as a whole, to ‘embed’ OFR by the company itself, however, is likely, since every such areas in all their policy decisions.80 Unlike the responsible office holder and responsible delegate of a decisions directors take as part of their general duties to company required to submit an OFR would be guilty of a the company, when considering the OFR directors must criminal offence and would be exposed to a civil penalty stress the priorities and values of the particular company if they failed to deliver the required documents.78 and the issues material to the business as a whole. But It is true that some companies already produce OFRs, how should directors decide what is material? which may include an environmental report; however, As Parkinson points out, directors are reporting from despite periodic cajolery by ministers beginning as early the standpoint of the company as an operating concern: as 1991,79 by the end of 2001 only 80 out of the FTSE 350 companies had produced OFRs. Those reports which ‘the focus of a report on environmental policies and are produced are not standardised. Without a minimum performance would be on the challenge environmental standard for reporting and verification, users cannot have management presents to the company as an operating access to reliable and comparable information. In addition, business and its response to those challenges. While reports may not include sufficient information properly there is likely to be a wide measure of overlap such a to inform users. Since these reports are often prepared report would not necessarily have the same coverage as a public relations exercise, companies may be tempted as a report the purpose of which was to make a full to include only the positive aspects of their behaviour, assessment of the company’s environmental impact.’81 ignoring other harmful but still material trends or risks. Companies may also include proposed actions which they It can be seen that this standpoint will not fully satisfy have no intention of implementing in practice. As there is environmental pressure groups.82 Yet, it is important to no auditing procedure these voluntary reports cannot be appreciate that it is not left up to directors to decide relied upon. whether they should report on environmental matters. If It should also be noted that the new codified duty of something is material, they must report. If a company directors would apply to all directors of all companies, ignores the effect of its policies on the environment, the OFR will provide useful information not only to shareholders concerned about the narrow financial value of company, but to ‘users’ as a whole. 75 OFRs apply to large private companies which do not sell their shares The OFR Working Group defines materiality as follows: on the open market. 76 Separate issues arise in connection with institutional investors. Under s. 11A of the Pensions Act 1995, pension fund trustees are required to ‘In making their good faith, honest judgements about disclose ‘the extent (if at all) to which social, environmental or ethical what information is material and should be included considerations are taken into account in the selection, retention and realisation of investments’. This has spawned a growing market in socially in their OFR, directors should be governed by the high responsible management firms, supported by ethical indices such as level objective of the OFR, which is to enable users to the FTSE4Good. See, further, Parkinson, n. 66 above, pp. 16–17. 77 Along the lines of the Directors Remuneration Report Regulations SI 2002/1986. 78 Modernising Company Law, n. 7 above, cl 85. 79 John Gummer (then Secretary of State for the Environment), 1991 80 Trade and Industry Committee, n. 43 above, para. 60. Shell Lecture, Royal Society of Arts (reported in The Guardian, 17 81 In de Lacy, n. 21 above, p. 56. May 1991). 82 See Trade and Industry Committee, n. 43 above, para. 58. 362 ELM 15[2003]6 : ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN

assess the strategies adopted by the business and Institutions and procedures for determining the potential for successfully achieving them. materiality Information will be material to the OFR if failure to Judgments of the board pf directors as to what is material disclose it clearly, fairly and unambiguously might must be made in good faith and honestly. However, the reasonably be expected to influence members’ board must also make sure that it is well-informed, and assessments of the company and hence the decisions has the necessary knowledge and skills. Where the relevant they may take, either directly, or indirectly as a result skills are not available in-house (as will frequently be the of the significance that the information has for other case in relation to the environment), the advice of outside stakeholders and thus the company. Information that specialists may be needed. It is, of course, up to each is material to the OFR may be quantitative or company to manage its business as it sees fit, but the qualitative; and may relate to facts or probabilities, Working Group suggests that separate committees could and to past or future events and decisions.’83 be set up to work out the detail of a particular area.87 This would be particularly useful with regard to The OFR is forward-looking, which means that plans and environmental matters. Such committees could include long-term projects must be considered. However, what of non-board members with the necessary knowledge and future uncertainties? The subject of some decisions may skill. not in fact materialise, even though they would have Companies could therefore be exposed to the expense material consequences. Does this mean that all possible of an ever-growing need for environmental risk consultants. future decisions must be included? To require this would This concern was raised in relation to the Danish ‘green surely put a great burden on the board. Consequently, it accounts’ legislation noted earlier,88 prompting the Danish is accepted that matters which are still in negotiation or Environmental Protection Agency to conduct an evaluation which are mere future possibilities need not be disclosed of the early experiences with this disclosure unless they are much more likely to happen than not.84 arrangement.89 It was found that 70 per cent of the 1,200 This could have important repercussions for environmental enterprises which prepared green accounts did so issues. Much of the science concerning the environment themselves, without the assistance of consultants.90 It was is uncertain. If one looks at the BSE crises, many would concluded that enterprises often already possess the have said that there was a negligible risk to human health competencies to gather and process environmental data. in eating contaminated meat, while others considered that Identifying, and planning how to fill, information gaps the risk was real. Neither view could be proved. Keeping are considered significant issues by the Working Group. this in mind, would it be possible for directors to claim Factors such as the lack of standardisation of management that provided they are acting in good faith and honestly, information systems will be problematic for companies and that an environmental risk is ‘just as likely as not’ to following mergers or takeovers, or where the company happen, they do not have to include it in their carries on business in different territories. This lack of deliberations? It would seem so. standardisation itself may be material and should be included in the OFR. Inevitably, the cost of filling 91 Process for determining materiality information gaps is an important consideration. Some boards may argue that it is extremely difficult to move The Working Group has followed up the definition of towards providing better quality information without materiality by elucidating a number of core process values: incurring excessive costs. However, some evidence the OFR should be transparent; there should be suggests that developing structures for monitoring appropriate consultation; it should take account of environmental performance may lead to savings rather appropriate comparisons; it should be comprehensive and than the creation of further costs.92 But this is not always consistent; and it should be subject to review.85 Against this backdrop, the Working Group formulates 10 questions that should structure a board of directors’ decision- 86 making. These are exacting and go some way to dispelling 87 Ibid., para. 44 (Q 2). any concerns that the OFR process will be diluted in a morass 88 See n. 10 above. of weak directorial discretion. They are discussed below in 89 See EPA Denmark, Green accounting in Denmark; available at www.mst.dk/indu/05030100.doc. relation to three themes: the decision-making institutions 90 Ibid. and processes for determining materiality and verifying 91 This is part of a more general concern, including the issue of legal the information disclosed; the type of information that is costs. For example, Nick Baldwin (ex-CEO to a FTSE 100 company) stated that, ‘I think Boards will find it challenging to go through the material; and the presentation and communication of the ten questions set out by the working group. I see lawyers’ fees ticking material information. These themes are the crux of the up at board meetings around the country if each Board decision needs success or failure of this environmental disclosure initiative. to be seen to comply with this process’. 92 One large company (BT) actively controls the ordering of oil by local staff so that they do not over-order, causing containers to overflow, resulting in heavy fines to the company. The cost of monitoring is less than the fines: per Dr Peter Howell, Technical Director, Teamenergy Ltd. The Danish EPA report, n. 89 above, states that 41 per cent of 83 Working Group, n. 14 above, para. 21. enterprises believe that they have achieved environmental improvements 84 Ibid., para. 41. due to monitoring and control systems as part of their work on the 85 Ibid., para. 43. environmental accounts, and that they have achieved a greater 86 Listed, ibid., at para. 44. commercial advantage (especially in the European car industry), with ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN ::: ELM 15[2003]6 363 the case. For example, the cost of fitting meters specifically the process of preparation of the OFR, and not its content. for energy management is very high, and there are Internal consistency, and whether appropriate rules and problems with billing systems. Many bills are not broken regulations have been complied with, will be considered. down in enough detail to allow customers to manage the The purpose is not to comment on the detailed content, energy use. Energy companies are not prepared at present nor on the judgment of the directors. However, auditors to rectify this problem of their own volition since to do so can make their assessment as to the adequacy of is too costly. No matter how much a company may wish procedures using information discovered from other to give or obtain accurate information, the expense or sources, such as the financial audit or possibly even the the impracticability of finding that relevant information OFRs of other companies in the sector. There is scope are significant barriers to achieving that aim. here for environmental issues (which could be hidden It is recognised that most companies which will need under the guise of other future expenditure in the financial to produce OFRs are likely to be members of a group of statements) to be checked and made transparent in order companies. Provisions are to be drafted at a future date to secure the statutory objective of the OFR. stipulating that where consolidated group statements are In the Working Group’s view, it is expected that the produced, the OFR must also be prepared on a group board of directors of a company will apply its knowledge basis. It is argued that this will ensure that the full picture and experience and, crucially, ask appropriate questions is presented and avoid the need for every subsidiary to of management and external advisors. Each item on the complete an OFR. It will also prevent a business evading OFR should be capable of challenge, and the Working the need to compile an OFR by splitting itself into a Group is particularly emphatic that there should be no number of companies each just below the threshold for presumptions.97 Each issue should be ‘signed off’ compiling an OFR.93 It will be more difficult therefore for individually to ensure that the information contained in a parent company to arrange its business in such a way as the OFR is credible. to make a subsidiary liable for environmental liabilities and These prescriptions aside, in the final analysis the any resultant loss of reputation. Despite the need to Working Group recognises that the OFR will be a dynamic include subsidiaries in the OFR there is still scope for process evolving, incrementally, over time; a process of hiding environmentally damaging behaviour behind ‘continuous improvement’.98 Thus, it is conceded that it franchising relationships.94 However, where, for example, may not be feasible to have the best possible process a company knows that a supplier is breaching and disclosure at the outset of the OFR initiative, but it is environmental regulations, this would be regarded as hoped that with monitoring and review, imperfections will material and therefore would need to be disclosed. progressively be eliminated. This was found to be the case Information must be reliable before it can be in Denmark where the quality of the accounts improved considered to be material. If the information has been and the preparation became less demanding when compiled in order for the company to comply with enterprises developed more efficient systems and standards such as the Combined Code95 requirements on therefore became better at managing the collection and internal control, this is likely to be regarded as reliable.96 processing of data.99 On the other hand, if information is ‘new’ information, external specialist bodies may be required for purposes Material information of verification. The Working Group suggests that the Assuming that the procedures are in place – i.e. that board could create an OFR template, which shows the boards can draw on people with appropriate knowledge, source of the information and any relevant comments are aware of information gaps and are content that the specifically in relation to the objectives of the OFR, and material they are using is reliable – how do boards decide whether any items have been subject to special checks. whether the information they have is material for purposes The reliability of the process by which the information of disclosure? There are two types of information that is regarded as material will be subject to an audit. This, should be considered at the outset for possible inclusion. however, will not be the same as the financial audit. The One type must be included in the OFR and the other OFR audit will be concerned only with the adequacy of should be included ‘whenever the directors in good faith judge them material’.10 0 The compulsory content of the OFR is comprised of three elements: first, the company’s business and business objectives, strategy and principal drivers of performance; a better overview of their own environmental performance. The secondly, a fair review of the developments of the information gained can enable a company to identify areas of poor performance, and address them. In Denmark 49 per cent of companies company’s and /or group’s business over the year, and believe they have achieved financial benefits as a result of a better the position at the end of it, including material post-year- overview and more efficient use of resources. As one director is quoted end events, operating performance and material changes; as saying, ‘if we use less, and exploit raw materials better, we will earn more. And if we exploit everything better, we will have less waste and so save money on disposal’. 93 Note 75 above, Annex D. 94 T Burns, ‘Environmental Liability and the Francisor’ (2000) 5 97 Working Group, n. 14 above, Q 8. Environmental Liability 142 . 98 Ibid., Q 10. 95 Committee on Corporate Governance Final Report (Gee, 1998). 99 EPA Denmark, n. 89 above. 96 Because it will have been prepared in order to comply with the financial 10 0 Modern Company Law for a Competitive Economy: Final Report, n. audit. 12 above, para. 8.40 364 ELM 15[2003]6 : ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN thirdly, the dynamics of the business, i.e. known events, ‘greenwash’ of the company’s profile as part of a public trends, uncertainties and other factors which may relations exercise. substantially affect future performance, including investment programmes.101 Communicating the information Information which must be included ‘whenever the In order to ensure that any rules can be updated and directors in good faith judge them material’ include amended quickly and easily, a Standards Board is to be corporate governance, values and structures, polices on set up to attend to the detailed disclosure requirements the company’s key relationships with employees, relating to the OFR. The governing principle is that the customers and suppliers and policies and performance on OFR should contain all the information necessary to matters such as the environment, community, social and enable ‘users’ – not just shareholders – to assess the ethical issues. As the Working Group explains, ‘the key strategies adopted by the business and the potential for area of judgement will not lie in whether these broad topics success. In Denmark, it is stressed that the ‘green are relevant but in deciding precisely what information, accounts’ should provide a means of communication under each heading, should be reviewed to determine between the enterprise and stakeholders, and be whether it is material and thus should be disclosed’.102 understood by anyone with a general education, not just This is clearly an onerous task. those with special environmental expertise. Despite these Companies will already have available a great deal of inclusive aims the Danish experience suggests that in information. The strategic business plan will contain practice the only people interested in reading green information about the purpose, values, strategy and goals accounts are students, teachers and auditors, and that of the company, and performance indicators will be available stakeholders have shown little interest in making use of in this and other sources. Moreover, listed companies will be them.107 complying with existing standards such as the Combined It can be seen from the experiences in Denmark not Code, but changes and improvements may be needed only that is it essential that companies which prepare especially in areas such as environmental reporting.103 green accounts actually aim to make them comprehensible To that end, the Working Group suggests that useful to the target audience, but that they are also able to information will be gleaned from revisiting subjects that identify who the target audience is. The awareness of green have appeared on the board’s agenda in the previous year. accounts was found to be greatest amongst the Minutes of this kind are a ‘good, but not always perfect, professional stakeholders, journalists, environmental guide to what have, in practice, been key issues affecting groups and investor organisations, while consumers and performance and prospects’.10 4 Previous OFRs and the neighbours were found to be ignorant of either the OFRs of other companies working in similar areas may existence of, or how to get access to, the accounts. Even also be relevant. If something is material for one company the Danish Society for the Conservation of Nature, while in the sector it will probably be material for others. If accepting that it is a good thing to compel enterprises to something was material in the previous year, it should be prepare green accounts, admits that it has so many other explained why it is not material in the current year. Also issues demanding its attention that it does not look at to be considered are industry guidance and models of the accounts in any detail. This is unlikely to be the case best practice, such as the Global Reporting Initiative.105 in the United Kingdom, where there is a vigorous culture Environmental pressure groups could be consulted, as of pressure group activism manned with people skilled in could other ‘stakeholders’, and the results of consultation lobbying public and private institutions. built into the company’s decision-making processes.106 Crucially, information will be material whether it reflects Directors’ ‘environmental’ duties positively or negatively on the company. This should put a distance between the OFR and glossy examples of The White Paper proposed that the duties of directors environmental reporting which offer little more than a should be codified to make them easier to understand and therefore easier to comply with. An adjustment is also needed in the factors which directors should consider when working to maximise shareholder wealth. The primary 101 There may be other information which may be of interest to some groups of users but which the board considers not to be material. role of directors – to promote the success of the company The OFR may contain links to this so that, for example, an for the benefit of the shareholders as a whole – has not environmental report could be produced separately with only that changed. Clause 2(a) of the White Paper108 asserts that a information considered relevant to the OFR being included. 102 Working Group, n. 14 above, para. 44. director must ‘act in the way he decides, in good faith, 103 Environmental reporting is carried out mostly on a voluntary basis. would be most likely to promote the successes of the In 1999 a review conducted by the Pensions and Investment Research company for the benefit of its members as a whole’. Council of 350 major companies in the United Kingdom found that only seven of the 50 financial sector companies in the sample However, it is now the duty of the directors to recognise produced a separate environmental report. In 2003 the ICSA Policy that success is more likely, and their duty to the Unit found that only 29 per cent of companies considered issues of shareholders thus discharged most effectively, when the corporate social responsibility at their AGM. 104 Working Group, n 14 above, para. 44. 105 See www.globalreporting.org. 106 The environmental and social impact statement of Scottish Power, n. 43 above, refers to information being led by stakeholder demands, 107 EPA Denmark, n. 89 above. but does not elaborate on how stakeholders were consulted. 108 Note 7 above, Sched. 2. ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN ::: ELM 15[2003]6 365 board takes a broad view of all the factors which influence the company – more so than its poor environmental profile success. Guidance is provided in cl. 2(b), which states – and therefore result in the reduction in the value of that ‘in deciding what would be most likely to promote shareholdings. Therefore, the extent to which directors’ that success, [the director must] take account in good duties will have any impact in practice is wholly dependent faith of all the material factors that it is practicable in the on shareholders placing a higher value on the environment circumstances for him to identify’. These factors will include than in the past. This, in turn, will depend on the OFR the company’s key relationships with employees, creditors and, in particular, the extent to which it is successful and customers, and issues bound up with social, ethical (whether or not through the medium of pressure groups) and environmental considerations.109 in communicating the importance of corporate As Birds points out,110 ‘take account of’ is not a very environmental performance to shareholders. strong obligation and in fact sounds similar to the Companies Act 1985, s. 309 obligation to ‘have regard Conclusions: towards institutionalised to’ the interests of the employees (a duty which is to be corporate environmental responsibility? removed under the new proposals). Section 309 is considered to have served little purpose save as a possible The Government’s company law reform proposals are open defence to directors who did in fact consider the interests to two contrasting criticisms relevant to the environment. of employees. Indeed, as Parkinson points out,111 it is still The first is that the proposals are unnecessary: companies only the shareholders who can appoint or remove a will strive to improve their environmental performance director, and it is still only the shareholders who have a when their competitiveness depends on it, regardless of right to vote and enforce the duties owed by directors. any specific legal promptings. The second criticism is that No matter how strong the demands made on directors by the proposals are insufficient: they leave too much to the company legislation may be, if the shareholders do not discretion of boards as to when and how environmental participate in supporting socially responsible behaviour considerations should be factored into companies’ (even in the face of pressure from stakeholders critical of decision-making processes. It can be seen from the the company’s environmental profile as disclosed within foregoing analysis that the first criticism has force to the an OFR), there will be no change. extent that competitiveness is indeed an important aim Would NGOs be advised to buy shares in order to underlying reform, and it would be unusual for the law to gain voting power and therefore threaten directors with direct boards as to how to go about achieving this aim. the prospect of being held accountable for their breach However, reform is also guided by other important aims. of duty?112 Although on the face of it this appears to be a Balancing constituent interests, transparency, encouraging sensible plan, when looked at more closely it has more sustainable patterns of production and consumption limitations. Private companies are not permitted to sell and fuller participation in decisions affecting sustainable their shares on the open market, only by private treaty. A development are aims that have been identified above as company may be reluctant to issue its holding to what it lending support in principle to an environmental dimension considers to be a troublesome pressure group. It is also to company law reform. likely that articles of a small company would contain a If the proposals are necessary to the achievement of pre-emption clause giving existing shareholders the right the Government’s aims, are they sufficient? Those who to purchase the shares of any member wishing to sell his/ doubt this argue that the Government has missed the her shares. Again, sale to a pressure group could be opportunity for directors’ duties to reflect a pluralist avoided. In a public company listed on the stock market, approach, enforceable by a two-tier board structure shares must be freely transferable, but the number of comprising of stakeholder representatives.114 Such shares needed to influence the actions of management is protagonists favour legislation along the lines of the high. Corporate Social Responsibility Bill,115 a private member’s More fundamentally, UK law separates company bill which aimed to make directors personally liable for management and company control. The effect of this is damaging behaviour and make subsidiaries, even foreign that directors do not have to do what the shareholders ones, the responsibility of the parent company. This tell them to do. In circumstances where there are sufficient criticism also has force. The reforms, as currently drafted members with a sufficient shareholding, a members’ in terms of director duties, would place the environment resolution may be placed before the AGM.113 But in these on no firmer footing than employee interests under s. 309 circumstances experience suggests that shareholders on of the Companies Act 1985, where there is a duty to ‘have the whole are prone to vote in a way that will increase regard’ (to the interest of employees), not the ‘duty of their dividends. Suing directors for breach of duty may care’ which some have optimistically claimed.116 As often be considered to reflect badly on the reputation of

114 Mainly the TUC and CORE: see Trade and Industry Committee, n. 43 109 3.3 draft notes (2)(a)-(d), Modernising Company Law, n 7. above. 110 ‘The Reform of Directors Duties’, in de Lacy, n. 21 above. 115 Presented by Linda Perham. It had its first reading on 12 June 2002 111 N. 21 above, p. 50. but has since been abandoned. 112 For example, in 2003, Friends of the Earth bought shares in 18 listed 116 For example, the Environment Agency, in its response to Modern companies with this aim in mind. Company Law for a Competitive Economy: The Strategic Framework, 113 CA 1985, s, 376(2). n. 12 above. 366 ELM 15[2003]6 : ENVIRONMENTAL DIMENSION TO COMPANY LAW MODERNISATION – HOWELL and PONTIN highlighted above, the effect of a duty couched in these terms is likely to be more symbolic rather than real. Where the proposals are most readily defendable is in relation to environmental disclosure. Whilst it is true that environmental considerations would only need to be addressed within the OFR to the extent that they are considered by the board ‘material’ to the long-term success of the company, thus making the proposals discretionary in form, the emerging government guidance suggests that boards will be expected to take an objective and robust stance on materiality in practice. This, allied to the fact that the disclosure requirements embrace money lenders as well as more direct and visible polluters, suggests a genuinely strategic dimension to the ‘greening’ of company law.117 Will the reforms institutionalise corporate environmental responsibility? Much depends on the pressure shareholders and the wider public bring to bear in shaming companies whose OFR is poor and rewarding those whose outlook is stronger. This potential has not been realised in other countries that have experimented with reform in this area, but Britain’s active ‘civil society’ gives cause for some optimism.

117 Of the kind that Richardson argues for:, see n. 4 above. For an indication of the Government’s favourable perspective on this, see Ekins and Pierce, International Financial Institutions: Enhancing their role in promoting sustainable development (DEFRA research paper, September 2003). CASE COMMENTARY – TRANSCO PLC v STOCKPORT MBC ::: ELM 15[2003]6 367

Case Commentary

Rylands v Fletcher restated – the House of Lords’ decision in Transco plc v Stockport Metropolitan Borough Council House of Lords, Lords Bingham, Hoffmann, Hobhouse, Scott and Walker, 19 November 2003, [2003] UKHL 61

Jason Lowther University of Wolverhampton

The House of Lords has, in this unanimous judgment, embankment, which was by now sodden with water, sounded the death knell for the rule in Rylands v Fletcher collapsed, with the result that a 27-metre section of the (1868) LR 3 HL 330 (Rylands) effectively to be considered gas main was left exposed and unsupported. Transco as a tort/rule in its own right. Having already been quickly took steps to repair the damage as there was a atrophied to the point of representing merely a peculiar, danger that the main might fracture. The repairs cost in almost speciality, aspect of nuisance in recent cases such excess of £93,000 and it was this amount that Transco as Cambridge Water Company v Eastern Counties Leather sought to claim back from Stockport. plc [1994] 2 AC 264 (Cambridge), their Lordships’ Transco brought the action under Rylands claiming judgments in this case questioned the scope and that Stockport was liable without proof of negligence. At application of Rylands in a modern context. While the rule first instance, judgment was given for Transco but this is not abandoned – all five Lords considering this too was later overturned on appeal. The Court of Appeal held radical a step – it is highly limited in its scope and against Transco, determining, inter alia, that a supply of application as a result of this judgment, and other recent water to the flats was a natural use of land. On the nuisance cases that have blazed the trail to the present point. All claim, it was held that Stockport had done nothing to five Lords gave judgments considering the requirements create the nuisance, which was to be seen in the escape of the rule, and determined that in this case the rule would of the water. Further, the Court of Appeal held that not be applied to the satisfaction of the appellant Stockport had neither adopted nor continued the (Transco), affirming the decision of the Court of Appeal. nuisance.

The facts The House of Lords – Lord Bingham Lord Hoffmann provided the most comprehensive After setting out the facts in outline, Lord Bingham description of the facts giving rise to the action. The considered the modern application of Rylands. He predecessor to the defendant local authority (Stockport) considered that of the options available, which included built a housing estate some 40–50 years ago, on which scrapping the rule altogether, his preferred option was to was an 11-storey block of flats containing 66 separate retain the rule in its ‘essential nature and purpose’ (para. dwellings. The flats were supplied with water by the 8), and to restate it as clearly and with as much certainty statutory undertaker, from whose water main a pipe fed as possible. Within such a step he noted, however, that tanks situated in the basement of the flats for onward wherever the boundary of the rule was set, new factual distribution to the flats. Given the nature of the premises, situations would bring difficulty. He saw Rylands as a sub- the water pipe feeding the tanks was larger than was usual species of nuisance, explaining that both required that for normal domestic plumbing, but was entirely usual for the event complained of must move outside of the land the circumstances in which it was used. Without any of one person to another: ‘an escape from one tenement negligence on the part of Stockport, the pipe failed at to another’ (para. 9). He also took the opportunity to some point within the flats, and water escaped. It was state, in his view conclusively, that any such claim did not first noticed when the bottom of a lift shaft was found to permit recovery for death or personal injury. Nuisance, be flooded, which Lord Hoffmann noted had been quickly he judged on the basis of the views expressed in discovered and repaired. However, it appeared that the Cambridge and Hunter v Canary Wharf Ltd [1997] AC leak had gone undiscovered for some time as water was 655 (Hunter), was a tort directed only to the protection seen bubbling up from an area away from the flats where of interests in land. the defendant’s 16-inch high-pressure gas main was buried His Lordship then considered the requirement under beneath a disused railway embankment. A section of the Rylands that the thing which the defendant had brought 368 ELM 15[2003]6 : CASE COMMENTARY – TRANSCO PLC v STOCKPORT MBC onto his land should be ‘something which … will naturally Social policy background do mischief if it escapes out of his land’ (cited at para. 10). He identified a practical problem as being the decision Interestingly, Lord Hoffmann went on to consider the social as to whether the escaped thing satisfies the danger of policy background to the decision, and such mischief test. He referred to a series of previous House of considerations emerged in relation to other parts of his Lords’ decisions which implied that a question of degree judgment. He concluded that behind the decision in should be considered. This led him to conclude on this Rylands lay a desire to determine liability issues in relation point that the test required that the defendant ought to emerging commercial enterprise. The notion that reasonably to have recognised that the thing accumulated liability for the costs and risks of a particular enterprise carried ‘an exceptionally high risk’ (para. 10) of danger or should be internalised, at the risk of the enterprise, had mischief if there were to be an escape. This test, he won-out in the case. He noted, however, that ‘the following considered, should not be easy to satisfy. century saw a steady refusal to treat it as laying down any broad principle of liability’ (para. 29). He then considered Non-natural user the limitations that affected the rule’s scope.

Turning to the concept of non-natural use, Lord Bingham Restrictions on the rule reflected that the literal interpretation, which suggested a requirement for the thing to reach the land by the force First, it was noted that the defence of statutory authority of nature, was ‘fairly described as redolent of a different applied to the rule. Further, natural events (‘Acts of God’) age’ (para. 11), a sentiment echoed by Lord Hoffmann. or the acts of third parties would, it was determined early His Lordship favoured an approach of ordinary user, in the rule’s evolution, exclude the principle of strict approving the statement of Lord Moulton in Rickards v liability. Secondly, Lord Hoffmann contrasted this position Lothian [1913] AC 263 (Rickards), where he stated: ‘it is with the strict liability offence contained in s. 85(1) of not every use to which land is put that brings into play the Water Resources Act 1991, concerning the pollution the principle. It must be some special use bringing with it of controlled waters, where such natural events or third increased danger to others, and must not merely be the party interventions would provide no defence unless they ordinary use of the land or such a use as is proper for the were really exceptional events. Thirdly, he considered the general benefit of the community’ (cited at para. 11). That necessity of remoteness. Referring to Lord Goff’s judgment meant that the rule in Rylands was only engaged when a in Cambridge he found that since the rule has its roots in defendant’s use was demonstrably extraordinary or nuisance, ‘liability should be no more extensive than it unusual. His Lordship was of the view that a test of would have been in nuisance if the discharge itself had unreasonable user would not be appropriate as something been negligent or intentional’ (para. 33). He concluded may well be out of the ordinary in terms of use, but would the point by once more referring to the rule’s nuisance- not be unreasonable. based heritage, stating that it should therefore not impose In conclusion, Lord Bingham held that the liability for unforeseeable damage. Escape remained an contemporary incarnation of the rule required that an essential component of the rule, and his Lordship was occupier of land had brought or kept on his land convinced that the rule did not permit recovery for something exceptionally dangerous or mischievous in personal injury. The final restriction Lord Hoffmann extraordinary or unusual circumstances. Should that thing considered was the non-natural user aspect. He again escape, an affected occupier could be compensated for referred to the judgment in Rickards cited by Lord any damage caused to his property in the absence of proof Bingham, although Lord Hoffmann was more critical of of negligence. In the present appeal he found that the ‘vagueness’ of the terms ‘ordinary use of the land’ Stockport had not failed that test. and to a use ‘proper for the benefit of the community’. The result was that there was today ‘a broad and ill-defined Lord Hoffmann exception for natural use of land’ (para. 39). Lord Hoffmann considered the utility in preserving Rylands as nuisance the rule, noting along with his colleagues that some jurisdictions had either absorbed the rule or denied that Lord Hoffmann also considered that Rylands was it had ever had application to them. He also reflected once essentially a category of nuisance. He noted that ‘strict’ more on Lord Goff’s judgment in Cambridge, where it was liability in nuisance related to the fact that a creator of a felt that impositions of strict liability were best left to nuisance had no right to continue an activity affecting a statute. To illustrate the point further, Lord Hoffmann neighbour’s land use merely because it was being done provided an example of statutory strict liability contained with reasonable care: ‘if it cannot be done without causing in s. 209 of the Water Industry Act 1991, under which an unreasonable interference, it cannot be done at all’ liability is strict on a water undertaker should water escape (para. 26). However, any liability to pay damages required from any pipe vested in it, although a further provision of that the damage occasioned was reasonably foreseeable. the section removes liability for damage caused to a public Rylands imposed liability for an isolated escape, as it did gas supplier. The section, according to his Lordship, who not impose a requirement that the escape was reasonably also noted that the statutory provision was stricter than foreseeable. the rule in Rylands, was about removing uncertainties over CASE COMMENTARY – TRANSCO PLC v STOCKPORT MBC ::: ELM 15[2003]6 369 which insurers should bear the loss. This led Lord against the context of this judgment, however, and the Hoffmann to reflect that ‘the irony of the present case is powerful opinions expressed in their Lordships’ judgments, that if the leak had been from a high pressure water main, particularly in relation to the concept of dangerous or belonging to the North West Water Authority, a much more extraordinary use, it would seem that there will be very plausible high risk activity, there could have been no few cases where the rule will be seen to apply. dispute’ (para. 42). It would appear that their Lordships regarded the fact Despite the above, he did not feel that the House that the damage suffered would be something that an should abolish the rule; rather, it should be rationalised, ordinary person might insure against as in some way or at least made clearer in relation to the natural user determinative. It could be respectfully argued that whether concept. That could not be done by looking backwards, or not a person has insured against a particular form of because the question of what was a natural use of land or damage, does not remove the fact that the damage has one bringing with it an increased risk should instead be occurred, and further that it has occurred through no fault judged by contemporary standards. Two features of of the insured (or non-insured) party, although it is contemporary society attracted Lord Hoffmann’s attention: perhaps a compelling means by which to assess the first, the extension of statutory regulation to more areas; extraordinariness of the activity leading to the damage. and, secondly, the availability of insurance covering Strict liability is recognised to exist as a result of damage to property. On the former point, it might be statutory schemes mentioned within the judgment, and necessary to consider whether statutory provisions the presence of such regulatory mechanisms have much created an exhaustive code of liability for a particular form to do with Lord Goff’s judgment in the decision of the of escape which excluded the rule. He gave the examples house in Cambridge Water. In that case his Lordship, as of strict liability for discharge of water under the Water referred to in Transco by Lord Bingham, essentially stated Industry Act 1991; pollution caused by the escape of (at p. 305) that it was more appropriate for Parliament to waste under Part II of the Environmental Protection Act impose strict liability in respect of operations of high risk. 1990; and pollution caused by escape of nuclear material His reasoning suggested that the relevant activities may under the Nuclear Installations Act 1965. On the latter have been more easily prescribed, that the persons point Lord Hoffmann stated that a useful guide to involved stood more chance of knowing their legal determine whether the risk had been created by a non- position, and that the incidence and scope of the liability natural use of land would be to determine whether damage could be determined with more precision. That is probably suffered was something that the occupier could reasonably correct as far as it goes,1 but for areas where Parliament have been expected to have insured against. has not acted, the question as to whether a person’s Applying his statement of the law to the facts of the knowledge of the extent of his or her liability can be case, Lord Hoffmann stated that the subsidence beneath precisely ascertained by him or her does not seem to be the gas main was a risk that no rational owner of a gas capable of a straightforward answer. main would fail to insure against. Further, he determined Other aspects of the judgment merely reflect the shift that there was not a non-natural use of land. This was change that has occurred in the past decade, and the established, first, because there was no greater risk created seeming judicial desire to clarify the extent and application by Stockport than any risk that would normally be of the rule. The requirement of foreseeability of damage associated with domestic or commercial plumbing; and being a necessary condition to be established is restated secondly, that the risk of damage caused to property was clearly, as is the fact that the rule only offers compensation something that most people could and generally did insure for damage to a claimant’s property. All of their Lordships against. On the first point he concurred with Lord referred to Professor Newark’s2 view that the rule is a Bingham’s view that exceptional risk should be a difficult species of nuisance ‘novel only to the extent that it test to satisfy. sanctioned recovery where the interference by one The other Lords broadly supported the views of Lords occupier of land with the right or enjoyment of another Bingham and Hoffmann, and did not add anything was isolated and not persistent’. (At p. 487–488.) significant in terms of the rules use or application. Their Lordships all considered that the rule had long been characterised by difficult distinctions and exceptions, Comment and that the restatement they have provided should make the rule easier to interpret, although, it might be said, On the facts of Transco there can be no real issue with more difficult to apply. the decision so far as it is limited to those facts. For one thing, it is probably unquestionable that the supply of domestic water is, as reflected upon by Lord Bingham, a wholly ordinary use of land, given the reference to Rickards and the many other (some less obvious than others) authorities which have considered this issue. With one of the necessary components for liability absent, it follows that Stockport would not be liable under the rule. 1 Although for a contrary view, see Markenisis and Deakin, Tort Law, 5th Whether or not this proves to be the end of the line edn (OUP, 2003), pp. 546–547. in relation to Rylands liability will have to be seen. Set 2 ‘The Boundaries of Nuisance’ (1949) 65 LQR 480. 370 ELM 15[2003]6 : CASE LAW

Case Law

Jason Lowther

University of Wolverhampton

Headline Issues

• EC law – Ligue pour la protection des oiseaux and hunting complies with principles of wise use and others v Premier ministre, Ministre de ecologically balanced control. The provision continues l’Amenagement due territoire et de that ‘member states shall see in particular that the species l’Environnement – preliminary ruling on hunting to which hunting laws apply are not hunted during the seasons; Criminal Proceedings concerning Nilsson rearing season or during various stages of reproduction’. – interpretation of trade in endangered species Similar provisions are applied to migratory species. regulations Article 9(1) and (2) of the Directive provides for derogations to a number of articles, including Art. 7. In • Civil liability – Loftus-Brigham and another v order to satisfy the criteria for derogations there must be Ealing London Borough Council – tree roots and no other satisfactory solution in the interests of, for causation issues; Daiichi UK Ltd and others v example, public health and safety, for the protection of Stop Huntingdon Animal Cruelty and others – fauna and flora, and, in Art. 9(1)(c), to permit under corporations and the tort of harassment; Transco strictly supervised conditions and on a selective basis, plc v Stockport Metropolitan Borough Council – the capture, keeping or other judicious use of certain modern application of the rule in Rylands v birds in small numbers. In such cases the derogations are Fletcher required to specify the species made subject to them, as well as things such as the means or methods authorised • Planning law – R (Jones) v Mansfield District for capture or killing. Council and another – planning and Article 2 of the Decree provides that derogations from environmental impact assessment; Evans v First prohibitions on hunting outside the hunting periods set Secretary of State and others – screening by the administrative authorities, and certain other times directions in environmental impact assessments when the birds are more vulnerable, can be granted by senior departmental heads to permit the capture, keeping • Wildlife and nature conservation – Hughes v or other judicious use of geese, wood-pigeons and thrush Director of Public Prosecutions – possession of in small numbers until 20 February of each year. wild birds Procedurally, an order of the hunting minister is required which lays down conditions and the number of birds that may be taken. EC law In the action brought before the French court, the following questions were referred to the ECJ: first, whether Preliminary ruling on hunting seasons Art. 9(1)(c) of the Directive permitted a member state to derogate from the opening and closing dates for hunting Ligue pour la protection des oiseaux and others v Premier which followed from consideration of the objectives ministre, Ministre de l’Amenagement due territoire et de specified in Art. 7(4); and, secondly, if so, what were the l’Environnement criteria which made it possible to establish the limits of ECJ, Case C-182/02, 16 October 2003 that derogation. On the first question the ECJ considered that Art. The ruling arose out of a challenge by the applicant (LPPO) 9(1)(c) did provide a derogation from Art. 7 regarding seeking to overturn a Decree of the French Government the opening and closing of hunting seasons, based on a (relating to the dates for the hunting of migratory birds consideration of the objectives set out in Art. 7(4) of the and waterfowl and amending the rural code) on the ground Directive. That led to consideration of the second of misuse of powers. question, and the ECJ stated at the outset that a member Community law, in the form of Directive 79/409/EEC state’s reliance on the derogation would be subject to any on the conservation of wild birds (OJ 1979 L103/1) (the measures adopted being sufficiently referential to the Directive), essentially provides, in Art.7, that member states factors set out in Art. 9(1) and (2). In that connection, a must ensure that any permitted hunting of certain species national measure permitting derogation from Art. 7 would listed in Annex II to the Directive does not jeopardise not comply with Art. 9(1) if it failed to refer to the fact conservation efforts in their distribution area. Specific sub- that such derogation could be granted only where there paragraphs of Art. 7 apply territorial constraints, and Art. was no other satisfactory solution. Also, in relation to 7(4) requires that any national legislation permitting hunting specifically, that could be permitted under Art. CASE LAW ::: ELM 15[2003]6 371

9(1)(c) only if: there was no other satisfactory solution; Endangered Species of Flora and Fauna 1973 (CITES) – it was carried out under strictly supervised conditions and reflecting that its purpose is to protect certain endangered on a selective basis; and it applied only to certain birds in species. In essence, CITES introduced restrictions and small numbers. controls on the international trade in specimens of species The condition requiring that there be no other contained within several appendices to it. Article I of CITES satisfactory solution could not be satisfied when ‘the defines ‘specimen’ to include any plant or animal, whether hunting period under a derogation, coincides, without live or dead, including parts or derivatives. Article VII(2) need, with periods in which the Directive aims to provide provides a mechanism to the effect that should a specimen particular protection’ (para. 16). That need would not be have been acquired prior to the application of CITES to met where the sole purpose of the derogation would be that specimen, the permitting and certification regime to extend the hunting periods for certain bird species in usually applied to the import and export of such specimens territories they already frequented during the hunting in Arts III–V of CITES does not apply. The Fifth Conference periods fixed by virtue of Art. 7. The ECJ then considered of the Parties to the Convention gave some guidance in further the condition that the derogation should only relation to the time of acquisition, providing that ‘for the apply to certain birds in small numbers. This condition, purposes of article VII(2) of the Convention, the date on the Court held, would not be satisfied if a hunting which the specimen is acquired be: for live and dead derogation did not ensure the maintenance of the animals taken from the wild: the date of their initial removal population of the species concerned at a satisfactory level. from their habitat; or for parts and derivatives: the date If that particular condition were not to be fulfilled, the of their introduction to personal possession, whichever use of the birds for recreational hunting could not be date is the earliest’ (cited at para. 7). considered judicious. In addition, Art. 9(2) required that Although the European Community is not a party to any measure authorising hunting under Art 9(1)(c) had CITES, its provisions were implemented by regulation in to specify a number of requirements. 1984. Subsequently, Regulation 338/97, which repealed In conclusion the ECJ answered the second question the original implementing regulation, was passed and thus. Article 9 of the Directive permitted hunting to be states, in Art. 1, that the Regulation applies ‘in compliance authorised pursuant to Art. 9(1)(c) where: there was no with the objectives, principles and provisions of [CITES]’ other satisfactory solution; it was carried out under strictly (cited at para. 9). Article 8 of Regulation 338/97 governs supervised conditions and on a selective basis; it applied the control of commercial activities in relation to Annexed only to certain birds in small numbers; and mention was species, and Art. 8(3) provides an exemption from the made of: species subject to the derogation, the means or provisions of that article upon the issue of a certificate methods authorised for capture or killing, the conditions from the competent authority of a member state in certain of risk and the circumstances of time and place under circumstances. Specifically, those circumstances relate to which such derogations could be granted, the controlling situations where the specimens were acquired in, or were authority, and, finally, the controls which would be introduced into, the European Community before CITES undertaken. and EC controls became applicable, or in the case of ‘worked specimens’ acquired more than 50 years Interpretation of trade in endangered species previously. regulations Article 2(t) of Regulation 338/97 defines specimen in a similar way to CITES; and Art. 2(w) defines worked Criminal Proceedings concerning Nilsson specimens acquired more than 50 years previously. The ECJ, Case C-154/02, 23 October 2003 latter definition applies a series of tests, and states that it means: The case involved a request for a preliminary ruling under Art. 234 of the EC Treaty from the Swedish courts on ‘specimens that were significantly altered from their questions relating to the interpretation of EC laws natural raw state for jewellery, adornment, art, utility, regulating the trade in species of wild fauna and flora. or musical instruments, more than 50 years before Specifically, the questions were concerned with EC the entry into force of this regulation and that have Regulation No. 338/97 on the protection of species of been, to the satisfaction of the management authority wild fauna and flora by regulating trade therein (OJ 1997 of the member state concerned, acquired in such L61/1), as amended by EC Regulation 2307/97 (OJ 1997 conditions. Such specimens shall be considered as L325/1) (referred to together hereafter as Regulation worked only if they are clearly in one of the 338/97); and EC Regulation 1808/2001 laying down aforementioned categories and require no further detailed rules concerning the implementation of carving, crafting or manufacture to effect their Regulation 338/97 (OJ 2001 L250/1) (the 2001 purpose.’ Regulation). The questions arose as a result of criminal proceedings brought against a Mr Nilsson as a result of A further regulation, EC Regulation 939/97 laying down an alleged infringement of Swedish law relating to detailed rules concerning the implementation of protected species of fauna and flora. Regulation 338/97 (OJ 1997 L140/9), was subsequently The ECJ explained the basic control at international adopted and provides, in Art. 1, that in addition to the law – the Convention on the International Trade in definitions in Art. 2 of Regulation 338/97, ‘date of 372 ELM 15[2003]6 : CASE LAW acquisition’ means the date on which a specimen was taken Court felt ‘may be considered identical’ (para. 40). That from the wild, born in captivity or artificially propagated. being the case, any taking into possession with a view to Additional provisions are included relating to the personal possession meant that such a specimen was exemptions provided for in Art. 8(3) of Regulation 338/ ‘acquired for the purposes of Art. 8(3)(b) of Regulation 97. Those rules were themselves repealed in 2001, 338/97. Thus receiving specimens as a gift, inheriting them although they were replicated in the 2001 Regulation. In or killing animals and taking them into possession made essence the relevant provisions require that any exemption them “acquired”’ (para. 42). for specimens referred to in Art. 8(3) of Regulation 338/ On the issue of whether the person who acquired 97 must be on the basis of agreement by the competent the specimen more than 50 years previously had to be authority; and that no certificate is required should the the present owner, the Court referred to the purpose of specimen be a worked specimen acquired more than 50 Art. 8(3). That, it determined, was to exclude old worked years previously. specimens (created before 3 March 1947) from the Art. Swedish law prohibits the negligent or wilful 8 prohibitions. In such cases, Art. 8(3)(b) of Regulation infringement of Regulation 338/97. Mr Nilsson was 338/97 applied to old worked specimens which indicted on two counts of breaking the Swedish law: first, subsequently became new acquisitions, so that it was not for having unlawfully and either intentionally or recklessly necessary that the person who acquired the specimen purchased a number of mounted specimens of birds, all more than 50 years previously was the present owner. of which were included in Annex A to Regulation 338/97; Finally, the Court determined that despite the and, secondly, for having unlawfully and either intentionally provision that no certificate was required for specimens or recklessly purchased a mounted brown bear, despite in Art. 2(w), the management authority of the member the fact that it was also a species included in the Annex. state must have been able to ascertain that the specimen The Swedish court referred the following questions to the concerned was in fact acquired in accordance with the ECJ for a preliminary ruling: first, whether the stuffed conditions in Art. 2(w). animals listed in Annex A fell within the definition of worked specimens; secondly, what was covered by the term Civil liability ‘acquire’ in Art 8(3) of Regulation 338/97; thirdly, whether the person who acquired the specimen more than 50 years Tree roots and causation issues previously had to be the present owner; and, fourthly, whether the provisions on exemption in Art. 32 of the Loftus-Brigham and another v Ealing London Borough 2001 Regulation meant that no assessment by the Council management authority in accordance with Art. 2(w) of Court of Appeal, Chadwick and Buxton LJJ, 28 October Regulation 338/97 was required. 2003 On the first question the ECJ determined that the issue as to whether the raw natural state of the specimen The case was concerned with a question of liability arising had been significantly altered within the meaning of Art. from subsidence having occurred at a residential property. 2(w) of Regulation 338/97 did not depend on its outer The claimants’ property was situated in street lined with appearance. Instead, the Court stated that the issue was mature trees which were the responsibility of the whether its general state had undergone alteration. In defendant local authority (Ealing). The claimants’ property relation to stuffed specimens, the Court stated that subsided and they were advised that the cause was the ‘conventional stuffing … and modern taxidermy methods desiccation of the clay sub-soil. The claimants took the alter the specimens in a complete and profound manner’ view, as a result of advice, that the desiccation was as a (para. 32). In that case, the first of the four conditions, result of the root activity of Ealing’s trees and brought relating to the fact that it was a worked specimen, was proceedings in nuisance and negligence claiming damages satisfied. The other three, relating to the conditions in in respect of the works needed to repair the house. Ealing Art. 2(w), were questions of fact for the national court to denied that there had been any significant desiccation of determine. On that basis the ECJ held that a stuffed animal the sub-soil, but even if there had been, it alleged that fell within the definition of a worked specimen. the claimants had been contributarily negligent in their The ECJ took the second and third questions together. failure to control a wisteria and a Virginia creeper which It noted that despite the fact that the European had grown over their house. Community was not a party to CITES, the reference in At first instance the judge found for Ealing. He did so Art. 1 of Regulation 338/97 to compliance with its aims after having asked himself the question whether the meant that the Court could not disregard them, so far as claimants had been able to show that Ealing’s trees were it related to the interpretation of Regulation 338/97. ‘probably the dominant cause’ of the damage to the Referring to the exemption in Art. VII(2) of CITES, in property. He concluded that they had not discharged the relation to what the ECJ termed ‘pre-convention burden of proof and thus dismissed the claim, stating (at specimens’ (para. 40), the Court noted that there was a para. 56 of his judgment) that ‘there is the real possibility difference in the dates by which acquisition had to be that a range of vegetation contributed to a greater or effected: in the case of CITES, 1 July 1975; and in the lesser degree to what occurred, but that is not sufficient case of Regulation 338/97, 3 March 1947. However, this for the claimants. The claimants need to how that the did not affect the definition of the specimens, which the defendants’ trees were probably the dominant cause and CASE LAW ::: ELM 15[2003]6 373 they have not convinced me that such was established’ Corporations and the tort of harassment (cited at para. 10 of the Court of Appeal judgment). The claimants appealed on the ground that the judge had Daiichi UK Ltd and others v Stop Huntingdon Animal applied the wrong test. The claimants’ main contention Cruelty and others was that the judge should instead have asked the question QBD, Owen J, 13 October 2003 whether, on the balance of probabilities, they had established that the trees were an effective and substantial While not at first glance the stock in trade of ELM, the cause of the damage. case is worthy of consideration as the principles could Chadwick LJ gave the judgment of the court. He easily be seen as being used in the context of restated the facts, including the proximity of the environmental protests resulting in direct action. Although respondent’s trees and the growth of the Virginia creeper some of the more extreme direct action associated with and wisteria over the claimants’ property. He then some animal rights protestors is not usually the mainstay identified the issues for appeal as being: first, the correct of the environmental activist, the principles in the case test if causation were to be established in a claim against have a wider reach. Five actions were heard together by a neighbouring tree owner in respect of subsidence arising individual and corporate claimants seeking injunctive relief from the extraction of moisture from the sub-soil; and, under s. 3 of the Protection Against Harassment Act 1997 secondly, whether the judge had correctly applied that (the Act). The action was one of a number in recent years test, or had applied some other. arising out of sustained campaigning by the first defendant He reflected first on the fact that the case had been organisation, Stop Huntingdon Animal Cruelty (SHAC), brought in both negligence and nuisance which had no whose declared aim was to bring about the closure of bearing on the conduct of it, and cited the judgment of laboratories involved in animal experimentation and Lord Cooke in another tree root case, Deleware Mansions belonging to Huntington Life Sciences (HLS). v Westminster City Council [2002] 1 AC 321. There, his Section 1 of the Act prohibits a person from pursuing Lordship had stated ‘the label of nuisance or negligence a course of conduct which amounts to harassment of is treated as of no real significance. In this field, I think, another, and which he knows or ought to have known the concern of the common law lies in working out the amounts to such harassment. The claimants alleged that fair and just content and incidents of a neighbour’s duty they had been subjected to harassment and intimidation rather than affixing a label and inferring the extent of the in the form of threatening letters, telephone calls, home duty from it’ (cited at para. 14). On the issue of causation, visits and criminal damage, as well as real and hoax fire- which he determined would be the same for both torts, bombings. At the hearing a question arose as to whether Chadwick LJ referred to the judgment of Lord Hoffmann the term ‘person’ for the purposes of the Act included a in the Kuwait Airlines case ([2002] 2 AC 883), which limited company. Section 3 of the Act provides that an was strongly approved by Lord Bingham in Fairchild v actual or apprehended breach of the s. 1 prohibition may Glenahaven Funeral Services [2003] AC 32, where any enable the High Court or the county court, on application uniform causal requirement for tort liability was denied. by the person who is or may be the victim of harassment, Chadwick LJ also stated that it was neither necessary nor to grant an injunction restraining the defendant, on pain appropriate to look for special causal rules applying to of arrest should they not comply, from pursuing any course cases involving trees. Essentially, what was required, as of conduct which amounts to harassment. Harassment Lord Bingham had stated in Fairchild, was that the claimant itself is not comprehensively defined in the Act, although, should prove on a balance of probabilities that the according to the provisions of s. 7, it includes alarming a defendant’s breach of duty caused or materially person or causing him or her distress. contributed to his injury. Owen J referred to the Court of Appeal judgment in According to the claimants, the judge had not applied Esther Thomas v Newsgroup Newspapers Ltd [2001] that rule and instead had required that the claimants prove EWCA Civ 1233 where the meaning of harassment was that Ealing’s trees’ roots had been the sole or most considered. Citing the judgment of Lord Phillips MR, who probable cause. They alleged in the appeal that the use stated that ‘harassment … describes conduct targeted of the words ‘dominant cause’ in the judge’s decision at an individual which is calculated to produce the connoted a ‘comparison of causal potency’ (para. 18) consequences described in section 7 and which is between the factors contributing to the damage rather oppressive and unreasonable’ (cited at para. 11), Owen than just adopting Lord Bingham’s test to the invasion of J concluded that there was no doubt that the conduct the tree roots. Much turned on a linguistic examination, experienced by the claimants amounted to harassment and eventually it was determined that the judge had failed within the meaning of the Act. He then addressed the to apply the correct test to the circumstances of the case, defendants’ submission that on the proper construction which case was remitted for retrial before a different judge. of the Act, the term ‘person’ did not include a limited [2003] EWCA Civ 1490 company and thus ‘a company cannot be the victim of harassment and cannot bring a claim under the Act. Although the issue had arisen before in relation to HLS, it had not been ruled upon. It was submitted that the language of s. 7 could only apply to individuals and that the legislative history was concerned with 374 ELM 15[2003]6 : CASE LAW providing an effective remedy for those who were Planning law targeted by stalkers. Further support for the defendants’ submissions was Planning and environmental impact assessment referred to in the Court of Appeal’s judgment in DPP v Dziurzynski [2002] EWHC 1380, where Rose LJ noted R (Jones) v Mansfield District Council and another that a person would usually include a body corporate, as Court of Appeal, Laws, Dyson and Carnwath LJJ, 16 provided for by the Interpretation Act 1987, but that the October 2003 construction favoured an interpretation that excluded a limited company. Owen J concluded the issue by holding The claimant’s appeal was concerned with a grant of that the term ‘person’ in s. 1 of the Act did not embrace outline planning permission for the development of an a corporate entity. However, in each of the actions the industrial estate on a 28-hectare site opposite her home. claim was brought by a named individual, for example the The basis of her challenge was the decision of the managing director of the company. Owen J found that defendant planning authority that an environmental since a claim may be brought by one individual on behalf impact assessment (EIA) was not required, as in its view of several others provided they had the same interest in the development was not likely to have significant effects the proceedings, the claimants and their fellow employees on the environment. had the same interest in the proceedings, which was to The original decision to grant outline planning not be harassed by animal rights activists, and it was permission in November 2001 was challenged by the therefore appropriate for them to bring the actions in claimant on the ground that it had been reached without respect of themselves and their employees. a proper consideration of the need for an EIA. The Owen J considered the position in relation to the defendant agreed to reconsider. In February 2002 the granting of injunctive relief and noted that authority defendant’s planning committee determined: first, that an provided that it would in certain circumstances be EIA was not required; and, secondly, that planning appropriate to impose an exclusion zone around the homes permission should be granted. The claimant challenged and premises of the employees and the company both decisions on the basis that the first decision was respectively. Articles 10 and 11 of the European unreasonable and unlawful, and that the second decision Convention on Human Rights were relevant in the was flawed as a result of the first, unlawful decision. The consideration. However, Art. 10(2), and similarly Art. claimant’s challenge was rejected in the High Court (see 11(2), provided that restrictions could be imposed in the ELM 15[2003]1 26), Richards J holding that the decision interests of a democratic society. Owen J also cited Stuart- was taken in accordance with the Town and Country Smith LJ in Monsanto plc v Tilley and others, The Times, Planning (Assessment of Environmental Effects) 30 November 1999, where he stated that ‘in a democratic Regulations 1988 (SI 1988/1199) (the 1988 Regulations) society the object of change in government policy had to and that the decision to grant planning permission was a be effected by lawful and not unlawful means. Those who lawful decision open to the council. The claimant appealed suffered infringement of their lawful rights were entitled on the grounds that there was controversy and uncertainty to the protection of the law’ (cited at para. 25). Owen J surrounding the impact on populations of birds and bats, concluded the issue by reflecting that the concern was and that the planning authority could not have decided whether the restrictions upon the freedom of expression on the impact of the scheme unless an assessment was or of freedom of assembly or association were necessary undertaken so as to resolve the uncertainties contained in order to protect the claimants’ rights, and that they in the reports considered by them. were proportionate. Given the evidence relating to the The 1988 Regulations were replaced by 1999 defendants’ actions, he was satisfied that the relief sought, regulations, although they are materially the same. The including the exclusion zones, should be granted. Regulations implement Directive 85/337/EEC on the [2003] EWHC 2337 (QB) assessment of the effects of certain public and private projects on the environment (OJ 1985 L175/40) (the Modern application of the rule in Rylands v Directive) (subsequently amended by Directive 97/11/ Fletcher EC (OJ L 073) (the 1997 Directive)). Regulation 4(2) of the 1988 Regulations provides that the competent Transco plc v Stockport Metropolitan Borough Council authority shall not grant planning permission to an House of Lords, Lords Bingham, Hoffmann, Hobhouse, application to which the Regulations apply unless it has Scott and Walker, 19 November 2003 taken environmental information into account and has stated that it has done so in its decision. The question The important reconsideration of the principles in Rylands was, however, whether the planning application was one v Fletcher in a contemporary setting are considered in to which the 1988 Regulations applied. It was not in more detail at p. 367 of this issue. dispute that the development project fell within the Sched. 2 category of ‘an industrial estate development project’, and thus reg. 4 would apply if it would be likely to have significant effects on the environment. Whether or not it would have such effects was a decision to be taken by the CASE LAW ::: ELM 15[2003]6 375 local planning authority, and subject to review on ordinary duty to consider all relevant matters when Wednesbury grounds. determining any planning application. He concluded by Richards J, in the High Court, had used, inter alia, the adding his weight to Dyson LJ’s judgment stating that the decision in Berkeley v Secretary of State for the determination of significant effect, for the purpose of reg. Environment [2001] 2 AC 603 to highlight the 2(2), lay with the planning authority, and it was importance of reaching a correct decision as to whether susceptible to challenge only on conventional Wednesbury or not an EIA was required in a given application. Dyson grounds. This made sense as it delineated the role of the LJ, who provided the main judgment in the Court of Appeal, administrative authority in determining the procedure to with which both Carnwath and Laws LJ concurred, expressly be adopted without the chance of challenge, other than approved that view, stating that Richards J was correct, on legal grounds. The administrative authorities were best despite the fact that the issue was not dealt with directly placed, as opposed to the courts, to make the sort of in Berkeley. He noted that Lord Hoffmann (in Berkeley) qualitative decisions involved. had not dealt with the issue in the instant appeal directly; [2003] EWCA Civ 1408 however, by reference to his view that if the Secretary of State did not direct that the application should be subject Screening directions in environmental impact to EIA, it was to be determined in the first instance by the assessments local planning authority. That determination would involve an exercise of judgment or opinion, and Dyson LJ stated Evans v First Secretary of State and others that ‘it is not a question of hard fact to which there can Court of Appeal, Simon Brown, Judge and Jonathan Parker only be one possible correct answer in any given case’ LJJ, 5 November 2003 (para. 16). The fact that reg. 2(2) used the word ‘opinion’ was sufficient reason to conclude that the role of the The case considered the relationship between the decision courts was limited to review on Wednesbury grounds. He of the Secretary of State to hold that a proposed also referred to the decision of the ECJ in Case C-72/95 development was not ‘EIA development’ pursuant to Aannemersbedriijf PK Kraaijeveld v Gedeputeerde Staten powers under the Town and Country Planning Van Zuid-Holland [1997] 3 CMLR 1in support of this (Environmental Impact Assessment) (England and Wales) conclusion. Regulations 1999 (SI 1999/263) (the Regulations) and Dyson LJ considered the claimant’s submission that a the findings of a planning inspector seemingly at odds conclusion that a development would be unlikely to have with that determination. The appellant made a claim under significant effects could only be reached if there was no s. 288 of the Town and Country Planning Act 1990 (the uncertainty about the effects of the development, and Act) seeking to challenge the decision of an inspector held that there was nothing to support a view as to any permitting development and overturning the original test which should be applied. Having evaluated previous refusal of planning permission. The Regulations, as will be case law which considered such questions as the extent more fully examined below, enable the Secretary of State to which EIAs could be excluded by the imposition of to make a direction that certain developments are conditions or the gaining of undertakings, he concluded environmental impact assessment (EIA) developments, that essentially, the decision as to whether a development with the result that they may not proceed without there required an EIA was one of judgment. While that judgment having been an EIA in accordance with the provisions of had to be informed, he continued that ‘this does not mean the Regulations. that all uncertainties have to be resolved or that a decision The issues arose in the process of obtaining planning that an EIA is not required can only be made after a permission for the development of some university halls detailed and comprehensive assessment has been made of residence. In May 2001 the second defendant university of every aspect of the matter’ (para. 39). It was thus the (the university) applied to the third defendant local case that, as per Richards J at first instance, uncertainties planning authority (the council) for planning permission might or might not make it impossible reasonably to for the development. The permission was refused and the conclude that there was no likelihood of significant university appealed to the Secretary of State under s. 78 environmental effect, and that everything would depend of the Act. The Secretary of State appointed an inspector on the facts of the individual case. The judge had to determine the appeal, and in exercise of his powers concluded that it was reasonable for the planning under reg. 9(1) of the Regulations he considered whether committee to have regard to the information as it had and the development was ‘EIA development’ within the to form the judgment that it had. On those bases Dyson meaning of the Regulations, and made a screening LJ felt compelled to dismiss the claimant’s appeal. direction (the direction). Carnwath LJ delivered a concurring judgment, but was The planning inspectorate informed the council of the concerned that the issue had taken too long to be Secretary of State’s direction. It stated that the determined. He stated that in hindsight, it might have been development fell within the description at para. 10b of better, in terms of time saved, for an EIA to have taken Sched. 2 to the Regulations and exceeded the threshold place. He was concerned to point out that ‘the EIA process criteria specified therein. However, the Secretary of State, is intended to be an aid to efficient and inclusive decision- having taken account of the relevant criteria set out in making in special cases, not an obstacle race’ (para. 58). Sched. 3 to the Regulations, determined that the Additionally, it did not detract from a planning authority’s development would not be likely to have significant effects 376 ELM 15[2003]6 : CASE LAW on the environment by virtue of its size, nature or location. considered by Simon Brown LJ in a slightly different context On that basis the Secretary of State’s direction was that and will be explored below.) the development was not EIA development. Simon Brown LJ then considered the substance of the Following the direction, a planning inquiry was held. appellant’s submission – in essence, that the Secretary of The inquiry lasted six days and took expert evidence from State’s and inspector’s decisions were inconsistent. The both sides, as well as representations from interested Secretary of State’s opinion was that the development parties, including the appellant. Simon Brown LJ noted was unlikely to have significant environmental impact (as that neither before, during or after the inspector’s decision above), whereas the inspector’s conclusion suggested did the appellant or anyone else raise the suggestion that otherwise, although containing no express reference to the development should be the subject of an EIA. The the environment per se. At this point Simon Brown LJ inspector issued a decision letter in November 2003. He helpfully noted that Sched. 2 development ‘remains an granted planning permission, and in the course of the letter EIA development irrespective of whether [the] effects are stated that ‘taking account of all of these matters, thought to be adverse or beneficial’ (para. 17). A second especially the design, size, scale and external appearance submission, which relied on the success of the first, that of the proposed building, I conclude that although it would as the development ought to have been characterised as have a significant effect on the character and appearance EIA development the inspector could not have lawfully of the surrounding area this would not be an adverse granted planning permission, but should have remitted the impact” (cited at para. 8). point to the Secretary of State to reconsider his direction, Simon Brown LJ set out the provisions of law applicable was also noted. to the case. He first referred to the duty to undertake Simon Brown LJ determined that the appellant failed EIAs imposed by Directive 85/337/EEC (OJ 1985 L175/ at the first hurdle. He stated that the ‘judgments being 40) (as amended) and given effect in the Regulations. made respectively by the Secretary of State in deciding Regulation 3(1) and (2), simply, impose a prohibition on what screening direction to give and by the inspector in the grant of planning permission in cases of EIA determining the appeal are quite different’ (para. 19). The applications without a consideration of environmental inspector had not been making or purporting to make an information. An EIA application (cited at para. 13 of the assessment of the development for the purposes of the judgment) is defined in reg. 2 as an application for Regulations and thus was not considering the Sched. 3 planning permission for an EIA development which is itself criteria. The inspector’s concern had not been limited to defined by reference to the Schedules within the the planning merits of the application, and within that Regulations, as a development which is either a Sched. 1 determination he would necessarily have considered the application or a Sched. 2 development likely to have impact of the development on aspects of the character significant effects on the environment. Simon Brown LJ and appearance of the area. The inspector had not found confirmed that it was common ground that the that the development would have had significant development at issue was a Sched. 2 development. He environmental effects within the meaning of the then considered the impact of reg. 4, which makes general Regulations: indeed, the inspector did not have to. By way provisions relating to screening. Part of reg. 4 empowers of contrast, the Secretary of State was required to take the Secretary of State to determine whether or not a account of the selection criteria in Sched. 3. Simon Brown development is an EIA development, and, further imposes LJ recognised that the inspector’s conclusions and the the condition that a planning authority or the Secretary Secretary of State’s Direction ‘appear to sit uneasily of State should take account of the criteria in Sched. 3 of together’, but concluded that ‘on a closer analysis however, the Regulations in deciding whether Sched. 2 development they are perfectly compatible (para. 19). Developing the is EIA development. Regulation 4(7) permits the Secretary point further, he once more considered reg. 4(3) and of State to make what is termed a ‘screening direction’ stated that the Secretary of State’s Direction was the whether or not requested to do so. A screening direction decisive one. is defined as a direction by the Secretary of State as to Additionally, per curiam, Simon Brown LJ considered whether development constitutes EIA development. circumstances whereby an inspector might invite the Regulation 6(4) provides that the Secretary of State Secretary of State to reconsider his screening direction. must make a screening direction where a person wishing He had earlier referred to reg. 9(2), which provides for a to carry out a development requests it. Supplementary situation where an inspector is dealing with an appeal and to that provision is reg. 9(1), which provides that when a question arises as to whether or not the application is considering an appeal against a refusal to grant planning an EIA application. If the inspector was of the view that it permission, if it appears to the Secretary of State that might be an EIA application, the question could be referred the application is a Sched. 1 or Sched. 2 application, that to the Secretary of State for a determination, and until it has not been subject to a screening opinion or direction, such direction, the inspector could not determine the and that is not supported by an environmental statement appeal other than by refusing planning permission. This (which incidentally had all happened in this case), the was not in issue in the main proceedings, as the Secretary Secretary of Sate may make a screening direction under of State had already made such a direction. Simon Brown reg. 6(4) as if such request had been made. The Secretary LJ stated that the inspector should not invite any such of State in the instant case made the screening direction reconsideration merely because on essential similar facts pursuant to reg. 9(1). (Regulation 9(2) was also he disagreed with the Secretary of State. However, if the CASE LAW ::: ELM 15[2003]6 377 inspector discovered during the course of the appeal that provides that for the purpose of establishing whether a the Secretary of State had proceeded under an important bird is able to be labelled as being reared in captivity, misapprehension regarding the nature of the development, both of its parents must have been in captivity at the time or other material acts came to light which undermined the egg was laid. the basis of the Secretary of State’s Direction, the He determined first of all the reasoning adopted by inspector might think it appropriate to ask the Secretary the magistrates was fallacious since the material that had of State to reconsider. He expected this to be an been put before them when the search warrant was being exceptional circumstance and present ‘at least a applied for was not evidence before them in this case. reasonable prospect of the Secretary of State now coming This did not mean that the appellant had no case to to a different conclusion’ (para. 24). Finally, it was also answer, however. Stanley Burnton J stated that the noted that the inspector was under no express duty to prosecution witness was an expert on British birds, and refer the matter back to the Secretary of State. when he testified as an expert that the birds were wild [2003] EWCA Civ 1523 and not bred in captivity, he was applying his expertise: ‘he was not an expert on non-British birds. In these circumstances it was implicit in his evidence that the Wildlife and nature conservation goldfinches were wild British birds, i.e., birds within the definition in s. 27’ (para. 12). He continued that in any Possession of wild birds event, the magistrates would have been able to take judicial notice of the fact that birds as common as goldfinches Hughes v Director of Public Prosecutions were ordinarily resident in or visitors to Great Britain, and High Court, Stanley Burnton J, 27 October 2003 that this was, he considered, ‘notorious and indisputable’ (para. 13). In this connection he quoted from the judgment The case followed from the appellant’s conviction for the of Lord Sumner in Commonwealth Shipping Representative possession of wild birds, as defined in s. 27 of the Wildlife v Peninsular & Oriental Branch Services [1923] AC 191 and Countryside Act 1981 (the Act), contrary to s. 1(2) at 212, where he said, ‘Judicial notice refers to facts, which of the Act. The appellant’s house was searched by the a judge can be called upon to receive and to act upon, police and the RSPCA, and five live goldfinches were either from his general knowledge of them, or from discovered. The appellant maintained that the birds had inquiries to be made by himself for his own information been bred in captivity, and, following the submission of from sources to which it is proper for him to refer’ (quoted the prosecution case, that he had no case to answer. His at para. 13). Magistrates should be encouraged to use reasoning for the latter submission was that the their common sense in such cases, and Stanley Burnton J prosecution’s expert witness had not stated that gave the example of absurdity should expert evidence be goldfinches were British wild birds. Before the magistrates, necessary to prove that sparrows or blackbirds were wild expert evidence was adduced by the prosecution to the birds for the purpose of the statutory definition. extent that the birds were not born in captivity and that The burden of proving that the birds were in fact bred they were wild birds. However, the main prosecution expert in captivity fell on the defendant, and not, as was submitted was not asked whether or not goldfinches were ordinarily for the appellant, on the prosecution. This was clear resident in or visitors to the United Kingdom. This according to the wording of s. 1(6), and was consistent ‘oversight’, if it could be so termed, formed the basis of with common sense according to Stanley Burnton J. It the appellant’s argument, essentially that there was no would be the person in possession of the bird who would evidence that goldfinches were wild birds within the know this, as they would know where they obtained the meaning of s. 27. The magistrates considered that the bird, even if they had not reared it themselves. It was held execution of the search warrant had not been challenged, that the magistrates ‘reached the right conclusion for the and on that basis concluded that the birds were wild birds wrong reason’ (para. 18) and accordingly the appeal was for the purposes of the Act. The appellant was thus found dismissed. guilty on both counts, and appealed by way of case stated. [2003] EWHC 2470 (Admin) The issue for the High Court was whether there was sufficient evidence before the magistrates for them to determine that the birds were wild birds according to s. 27 of the Act. His Honour Stanley Burnton J gave the judgment for the High Court, and began by setting out the relevant statutory provisions. Section 1(2) essentially provides that should a person possess any wild bird, including derivatives, he shall be guilty of an offence. A qualification of the term ‘wild bird’ is made in s. 1(6) in relation to birds which have been reared in captivity. Section 27 provides the general definition of a wild bird – essentially any bird of a kind which is ordinarily resident in or is a visitor to Great Britain in a wild state. Section 27 also 378 ELM 15[2003]6 : CASE ROUND-UP

Case round-up Carolyn Abbot University of Manchester

The period covered by this issue’s case round-up is McLaughlin £300 and ordered him to pay £790 in costs. October and November 2003. Also on 30 October, West Dorset Magistrates’ Court heard how Andrew Brophy, an electrical installation contractor, Packaging offences fly-tipped waste in the Dorset countryside. Mr Brophy, who was responsible for disposing of waste generated at Several companies have been prosecuted in the past two a British telecom exchange where he was working, stated months for breach of the Producer Responsibility that at the time of the offence he did not have the financial Obligations (Packaging Waste) Regulations 1997 (SI means to take the waste to a licensed site. He was able to 1997/648) (the Regulations). In early October, Grove demonstrate to the Agency that on previous occasions International (UK) Ltd appeared before Sedgemoor the waste had indeed been disposed of lawfully. Mr Brophy Magistrates’ Court pleading guilty to three offences under was fined £80 and ordered to pay £920 in costs. the Regulations. The offences came to light following a On 6 November, Bucks Charcoal and Recycling Ltd visit and subsequent investigation by Environment Agency and its director, Jack Byrne, were successfully prosecuted officers. In 2001, the company, which imported gifts and by the Agency for illegally depositing and disposing of toys mainly from China, handled in the region of 270 waste without the necessary waste management licence. tonnes of waste and had a turnover of in excess of £11 In response to complaints from the public, Agency officers million, thereby exceeding the 50 tonne and £2 million found that waste, including wood and plastic, was being limit laid down in the Regulations. Failure to register with unlawfully deposited and burnt on a site in the Agency had saved the company a total of £9,983 in Buckinghamshire. Amersham Magistrates’ Court fined the recycling costs. The company was fined £9,000 and company a total of £3,500 with £3,000 in costs. Jack ordered to pay £667 in costs. Byrne was fined £5,000 with a further £5,000 in costs. On 21 October, Abergavenny Magistrates’ Court fined a Welsh butchers company a total of £4,050 and ordered Special waste offences it to pay £500 towards the costs of the Agency for breach of the Regulations. During the years 1999, 2000 and On 4 November, Davies Brothers (Waste) Ltd of Bridgend 2001, Welsh Brothers (Butchers) Ltd failed to comply with pleaded guilty to three offences relating to the storage three provisions of the Regulations and was fined £450 and handling of special waste, namely asbestos. The on each of the nine charges. company owned and was the licence holder of a civic On 10 November, Nectar Imports, a wholesale drinks amenity site. The site was leased to Bridgend County company, was fined £6,000 and ordered to pay £1,000 Borough Council which had sub-contracted the running in costs by North West Wiltshire Magistrates’ Court after of the site to South Herts Waste Management Ltd. During pleading guilty to six offences under the Regulations. The a routine inspection, Agency officers discovered a member court heard how the company failed to register with an of the public unloading waste asbestos sheets into a skip approved packaging scheme in 2000 and failed to take that was not adapted to receive special wastes. Although reasonable steps to recover and recycle packaging. a properly adapted skip was on site, it was full of waste and the Agency inspector was informed by a representative Waste management of the company that the asbestos material would be transferred into the correct skip once it had been emptied. Fly-tipping Sampling revealed that the asbestos was extremely hazardous. By prosecuting the defendant, the Agency On 30 October, Joseph McLaughlin, the owner of King wanted to demonstrate that owners of sites and holders Construction Skip Hire, pleaded guilty to depositing of waste management licences could not transfer controlled waste on land that did not have the benefit of responsibility for such sites to lease holders and sub- a waste management licence. Although the company was contractors. Bridgend Magistrates’ Court fined the permitted temporarily to store waste within a secure company a total of £12,000 for three offences under the container or skip on the quarry site, in July 2003 the Environmental Protection Act 1990 (EPA 1990). The company had been forced to store some of its waste on company was also ordered to pay £1,548 in costs to the the quarry floor, for which there was no valid waste Agency. management licence. A Plymouth judge fined Mr CASE ROUND-UP : ELM 15[2003]6 379

Other waste offences the waste on his unlicensed farm near Llanelli. The waste, including household, building and demolition waste, was Failing to comply with the duty of care as prescribed under either burnt or stored on the site. In effect, Mr Charles s. 34 of the Environmental Protection Act 1990 has led was running an illegal transfer station and landfill. As a to a number of successful prosecutions. Roy Randall, a result of non-compliance with environmental laws, Mr Stratford motorcycle dealer, whose motorcycle business, Charles profited greatly from these activities. His Honour Double R Motorcycles, had an annual turnover of more Justice Morton fined Mr Charles £18,000 with £8,300 than £1 million, paid a man in a white van £100 to dispose in costs. Speaking after the case, an Agency officer of waste tyres and general waste. The load was disposed commented that ‘[H]opefully, the size of this fine will of illegally at a site in East London. On 2 October, Mr persuade people to comply with the relevant legislation’. Randall was fined £2,000 and ordered to pay £667.20 in Recurrent offending can lead to the imposition of costs by Stratford Magistrates’ Court for failing to ensure substantial fines. On 6 November, Stephen Cleworth and that the waste was transferred to a registered carrier. In Terence Cleworth, partners in a family scrap metal addition, the waste was not accompanied by a waste business, A&A Cleworth & Son, pleaded guilty to seven transfer note, as prescribed by s. 34. waste offences each. The company was registered with On 22 October, WH Smith pleaded guilty to failing the Agency for scrap metal recovery and the dismantling to take reasonable measures to prevent waste escaping of motor vehicles. The keeping or treatment of any other from a company yard in East Cornwall. An employee of waste on the site was not permitted. In August 2002, an North Cornwall District Council alerted the Agency to Agency inspection revealed that household, commercial, the fact that newspapers and other litter were blowing construction and demolition waste was being stored on out of the site and littering the nearby street. Upon the site, either in skips or on the ground. The waste inspection, Agency officers found that the site was in a disposal activities were taking place at the instruction of generally untidy state. The backlog of waste was due to Stephen Cleworth; Terence Cleworth was a driver and plant the fact that a contractor, employed to remove the waste operator at the site. Although the waste was removed, from the site once a week, had failed to visit the site for subsequent Agency inspections over an eight-month three weeks. East Cornwall Magistrates’ Court fined WH period revealed that unlawful waste disposal operations Smith £1,000 with £600 in costs to the Agency. were continuing. Formal warnings and notices had been In late November, a joiner from Halifax was successfully issued, but to no avail. In March 2003, the Fire Service prosecuted by the Environment Agency for failing to was called to the site to put out a fire resulting from the comply with the duty of care. Barrie Slack paid a man burning of commercial and garden waste. Local residents £300 to dispose of waste material (including old window had complained about unacceptable noise and nuisance frames, demolition and building waste) which was emanating from the site, and in 1993, the council had subsequently dumped close to a public footpath in Halifax. refused to give planning permission for the land to be Mr Slack pleaded guilty to failing to take all reasonable used for storing and hiring skips. Wigan Magistrates’ Court measures to ensure that the waste was transferred to an fined the defendants £10,500 each with £1,000 each in authorised person and failing to ensure that a transfer costs. note was completed. Halifax Magistrates’ Court fined Mr On 11 November, Craig Currie t/a Midland Skip Hire Slack £700 and ordered him to pay £600 in costs. appeared before Newark Magistrates’ Court, charged with In two prosecutions brought by the Environment operating an illegal waste transfer station. Despite both Agency Wales, the courts imposed heavy fines on those written and oral warnings, Mr Currie deposited waste, who breached waste management controls. On 30 including bricks, plastic and paper, on a farm near Newark. September, Michael Davies, director of a waste disposal The site did not have the benefit of a waste management firm, AMR Waste, and Ray Punchard were successfully licence. He also deposited waste at two other sites, neither prosecuted for the unlawful deposit and disposal of of which was licensed. Mr Currie was fined £3,500. controlled waste, contrary to ss 33 and 34 of the EPA Under s. 33 of the EPA 1990 it is a criminal offence 1990. A covert surveillance operation by the Agency to breach waste management licence conditions. On 8 revealed the fact that AMR waste was bringing skip loads October, Alton Magistrates’ Court fined TJ Landfill Ltd of waste onto a farm, where it was being illegally deposited, £20,000 with £3,956 costs for breaching its waste sorted and occasionally burned. Mr Davies and Mr management licence. The company operated a landfill in Punchard each pleaded guilty to three offences before Selborne. In response to public complaints, Agency Swansea Magistrates’ Court. They were fined £4,500 each officers carried out surveillance of the site over a period and ordered to pay £600 each towards the Agency’s of two days, during which time they observed a skip full of investigation and prosecution costs. unauthorised waste being tipped on the landfill site. The On 1 October, William Nigel Charles, owner of Sospan operation also revealed irregularities in the company’s Skips, appeared before Swansea Crown Court charged recording systems. TJ Landfill Ltd admitted that unlicensed with four offences relating to the deposit, treatment, activities had occurred on site. keeping and disposal of controlled waste on land without On 26 September, Stuart John Davis was successfully the benefit of a waste management licence. Mr Charles, prosecuted by the Agency for two waste offences. The whose business involved the supply of skips and case is interesting as Mr Davis was a director of a now subsequent disposal of their contents, tipped and sorted insolvent company called Speedstrip Ltd. The company 380 ELM 15[2003]6 : CASE ROUND-UP was formally wound up in March 2003, leaving the site mechanisms also failed. The company was fined £5,000 unsecured. Following closure of the site, a variety of with costs of £1,230. harmful chemical wastes remained on the premises, which On 8 October, United Utilities was successfully were close to residential houses, a public footpath and a prosecuted by the Agency for breaching the conditions watercourse. Following a risk assessment, the Agency of its effluent discharge consent. The company had a arranged for the wastes to be removed and the site cleaned consent to discharge treated sewage effluent from up at a cost of £99,000. Llwynpia Magistrates’ Court treatment works into the Irish Sea. Attached to the consent sentenced Mr Davis to four months’ imprisonment for was a condition limiting the biochemical oxygen demand depositing controlled waste on land which did not have of the discharged sewage. Agency sampling revealed that the benefit of a waste management licence. He received a on eight occasions – three more than the five allowed – further concurrent four-month custodial sentence for the treated sewage exceeded the limit. According to keeping controlled waste on land without a waste United Utilities, the failures resulted from high loading of management licence. sewage passing through the plant when its interceptor sewer was washed out following a long dry spell. The Water pollution company was fined £10,000 and ordered to pay costs of £1,639.97 by Wyre Magistrates’ Court. Water companies On 15 October, Northumbrian Water Ltd pleaded guilty to causing raw sewage to enter a watercourse. In October, South West Water was successfully prosecuted Durham Magistrates’ Court heard how the Agency by the Agency three times. On 2 October, South West received a report of sewage in Beechburn Beck. An Agency Water was fined £3,000 and ordered to pay £525 in costs officer investigated and found that, due to a blockage, a to the Agency for breach of s. 85(6) of the Water combined sewage overflow was discharging raw sewage Resources Act 1991 (WRA 1991). Under the company’s into the watercourse. Two days later, the Agency officer discharge consent, treated effluent had to satisfy certain made a second visit and found that about 2,000 fish of minimum standards. In 2002, three out of 10 samples various species had been killed. Although the overflow taken by the Agency failed to meet the minimum standards was not discharging, there was evidence that it had done (under the consent, the maximum number of failures so recently. The company was fined £3,500 and was permitted was two). The poor quality sewage effluent ordered to pay £1,218.50 in costs. threatened the bathing water quality at a nearby holiday On 27 October, Llanelli Magistrates’ Court fined Dwr beach in Cornwall. On 20 October, South Devon Cymru Welsh Water £750 and ordered it to pay £1,028 Magistrates’ Court heard how South West Water allowed towards the costs of the Agency. A combined sewage raw sewage to pollute a lake in a country park, which was overflow had discharged grey, foul-smelling sewage into a also a site of special scientific interest. The pollution was local watercourse. discovered by a countryside ranger, and was traced to a leaking mains sewer, where there was a blockage in the Oil pollution pipe. The court heard how, in the previous five years, members of the public had made two complaints about On 20 October, Antails Ltd, a paper merchant, was fined discharges from the sewer. The company was fined £4,000 £2,000 by Bury Magistrates’ Court after pleading guilty and ordered to pay £915 in costs. On 29 October, the to causing polluting matter to enter controlled waters, company appeared before East Devon Magistrates’ Court contrary to s. 85(1) and (6) of the WRA 1991. Following and pleaded guilty to causing sewage effluent to enter an investigation by the Environment Agency, it was found controlled waters contrary to s. 85(3) of the WRA 1991. that an oil storage tank, containing oil for the site’s heating A failure in one of the company’s pumping stations allowed system, had a leaking feed pipe. The oil had then escaped crude sewage mixed with river water to enter the River into the ground and the surface water drain. Due to an ill- Creedy. According to Agency staff, this was the third time maintained oil interceptor forming part of the surface the sewage pumping station had discharged illegally in water drain, oil had been discharged into a reservoir known the last three years. The company was fined £4,500 and as Long Lodge. The environmental damage caused by the ordered to pay £500 in costs. discharge was considerable. Reeds in the stream died and, On 8 October, Southern Water was fined £3,000 with as the incident occurred during the spawning season, it is £2,859 in costs for polluting farmland with sewage. likely to have affected the reservoir’s fish population. Maidstone Magistrates’ Court heard how a malfunction On 21 October, English, Welsh and Scottish Railways in a waste water treatment works operated by Southern Ltd (EWS) was fined £15,000 with £3,988 in costs by Water led to the discharge of sewage. No environmental Wantage Magistrates’ Court for breach of s. 85(1) of the damage resulted from the incident. On 7 November, WRA 1991. Serious environmental damage occurred due Southern Water also appeared before Lyndhurst to an oil leak in a fuel delivery pipe which was contained Magistrates’ Court charged with causing crude sewage within a concrete duct. Although the ducting should have to enter the Solent Estuary. The incident occurred contained any oil spillage, it was found to be totally during the summer of 2002, near an area used for ineffective, thereby allowing oil to escape into a nearby water-related activities. A fuse had blown in a pumping lake. In total, 11,000 litres of oil had leaked into the station, causing a build up of effluent. The alarm watercourse, killing approximately 5,000 fish. One Agency CASE ROUND-UP : ELM 15[2003]6 381 officer described it as one of the most serious oil incidents 1,600 salmon had been killed, as well as a smaller number he had witnessed in 30 years of experience. of other fish. The river is an important source of salmon In mid-November, a meat wholesaler and exporter was and sea trout. successfully prosecuted by the Agency for allowing On 6 November, a substantial fine was imposed by poisonous, noxious or polluting matter to enter the Rivers Banbury Magistrates’ Court on Jamie Bell, manager of Thet and Wittle, contrary to s. 85(1) of the WRA 1991. Rynehill Farm. Members of the public alerted the Agency Members of the public alerted the Agency to oil floating to the fact that the River Evenlode had turned black and on the surface of the Rivers. The source of the pollution many fish had been killed. Agency officers found the was traced to the premises of EE Pilgrim, where a large oil source of the pollution to be Rynehill Farm, where faulty tank had leaked oil. This had then run into a nearby irrigation equipment allowed slurry to seep through cracks watercourse feeding into the River Wittle. The oil storage in the ground into the land drainage system. The slurry tank was found to be faulty and did not have a protective then made its way into a local watercourse. The equipment bund around its perimeter. Magistrates fined the company failure was due to the fact that staff had been inadequately £8,000 and ordered it to pay £1,339 in costs. trained. Mr Bell was fined £10,000 and £2,310 in costs. On 27 November, J Hughes Construction Ltd was On 7 November, Llandudno Magistrates’ Court found fined £4,000 and ordered to pay £1,684 costs for a local farmer, Anthony Edwards, guilty on two charges causing polluting matter, namely red diesel, to enter the relating to a significant pollution incident on a tributary River Foss in York. Magistrates heard how a member of of the River Dee. The pollution, caused by leaking rusty the public contacted the Agency to report oil on the river. barrels containing detergent, killed more than 243,000 The spill was traced to a development site, where a fish at an Environment Agency Wales hatchery. Mr Edwards damaged plastic fuel tank, belonging to the defendant was fined a total of £3,000 and ordered to pay costs of company, was lying on the ground. £2,000 to the Agency. On 24 November, before Wareham Magistrates’ Court, Agricultural pollution farmer David Griffin pleaded not guilty to causing poisonous, noxious or polluting matter to enter controlled On 30 September, J & D Edgar Ltd, a farm business, waters, contrary to s. 85 of the WRA 1991. A watercourse appeared before New Forest Magistrates’ Court charged in Dorset had been polluted by farm waste. The source of with causing farm effluent to enter the Keyhaven Harbour the pollution was traced to Mr Griffin’s farm where an illegal in July 2002. The defendant company maintained a dairy discharge of slurry was discovered. Mr Griffin was fined herd which produced a large quantity of slurry. An £500 and ordered to pay £2,800 in costs. independent contractor was employed to do the slurry spreading. However, due to inadequate spreading of the Other water pollution incidents slurry, effluent polluted the Keyhaven Harbour. The company was fined £2,000 and ordered to pay costs of On 2 October, Sonae UK Ltd, a manufacturer of chipboard £750. It also paid a total of £1,743 in clean-up costs. products, was fined £37,500 at Huyton Magistrates’ Court Fortunately, the incident caused no lasting damage. after pleading guilty to a number of pollution offences. On 21 October, a Cambridgeshire farmer, Mr Michael The company was also ordered to pay £3,150 in costs to Stratton, was prosecuted by the Agency for breach of s. the Agency. The chain of events (and pollution incidents) 85(1) of the WRA 1991. A member of the public began in June 2002, when an explosion at Sonae’s main complained about the spreading of septic tank waste at a woodchip manufacturing plant caused approximately farm belonging to Mr Stratton. On investigating the 20,000 litres of concentrated white wax emulsion to watercourse around the farm, the Agency discovered it escape into the surface water drainage system. The system showed high levels of ammonia and low levels of dissolved incorporated a ‘catchpit’ which allowed water to be stored oxygen. Two sewage discharges from the farm were found and then used in the manufacturing process. However, a and a tanker was seen discharging waste at the far end of drainage pipe also formed part of the catchpit, so when the field. Wisbech Magistrates’ Court fined Mr Stratton the water level reached a certain point, the contents of £4,000 and £1,108 in costs to the Agency. the pit were discharged. On the day of the explosion, On 3 November, John Fowler, a farmer from manufacturing on the site ceased and so no water was Carmarthenshire, pleaded guilty to two charges relating being used. The contents of the pit, including the wax to the pollution of a watercourse in Wales. The first charge emulsion, overflowed into a nearby brook. Samples of the was brought under s. 85(1) of the WRA 1991 for which brook taken by Agency staff indicated that the water was he was fined £1,200. The second charge was brought polluted to almost three times the strength of raw sewage. under s. 4 of the Salmon and Freshwater Fisheries Act A further discharge of wax emulsion occurred 1975 for which he was fined £300. In May 2003, Mr approximately two weeks later. Another discharge, this time Fowler contacted the Agency to report that a discharge of green dye, occurred in August 2002, causing further of slurry had occurred from a slurry storage tank located damage to the brook. After the explosion, production of on his farm. He alleged that bulls had escaped from a chipboard did not resume on the site until the end of shed and had damaged and opened the valves of the slurry August 2002. As a result, large piles of woodchip built up tank. Agency officers undertook an ecological appraisal on site, so that by the beginning of October 2002, large of the River Taf and found that over 13,000 trout and mounds in the yard started to rot. Water used to control 382 ELM 15[2003]6 : CASE ROUND-UP the rotting process became contaminated with substances Pollution prevention and control from the rotten wood and polluted the same brook. Although the Agency suggested temporary measures to On 20 October, Landowner Liquid Fertiliser Ltd and its stop the discharge, Sonae took no action, and another managing director, William Boon, were prosecuted by the discharge occurred a few weeks later. The Environment Agency for breach of its IPC authorisation conditions. Agency told the court that all the incidents were Telford Magistrates’ Court fined the company £18,250 foreseeable and could have been prevented. and ordered it to pay £15,000 in costs. Mr Boon was On 6 October, Sedgemoor Magistrates’ Court fined £1,425. In total, eight charges were brought by the imposed a substantial fine on a cheese factory in Somerset. Agency, relating to two separate pollution incidences. The A J & R G Barber Ltd was charged with three offences first incident occurred in early 2001 when Mr Boon relating to allowing polluting matter to enter controlled authorised the fitting of a faulty stainless steel tank that waters. A further two offences related to depositing was to store a very strong waste acid used in the making controlled waste on land that did not have a waste of fertilisers. The faulty tank was installed above a culvert. management licence. During December 2002, three Approximately 1,500 litres of acid leaked from the tank separate discharges of dairy washings from land at a and polluted a brook. On discovering the pollution and farm in Dorset had considerably deteriorated the water tracing the chemical to the defendant company, the quality of the River Alham in Somerset. The defendant Agency served a prohibition notice to prevent use of the company had permission to spread dairy wastes from tank. An enforcement notice was also served requiring the its cheese factory on land at other farms in the area. company to rectify other problems, including inadequate However, the farm in question was not registered for bunding and poor pipework. The second incident occurred waste spreading, a contravention of the Waste in Autumn 2001. After trail experiments, the defendant Management Licensing Regulations 1994 (SI 1994/ company agreed to accept and treat a by-product 1056). The company was fined £50,000 and ordered to produced by another chemical company. The IPC pay £2,547 in costs. authorisation was varied in order to permit the process On 18 November, Ibstock Brick Ltd pleaded guilty to on the understanding that the operations would be carried two charges of causing polluting matter to enter a out under the guidance of the company’s chemist. Mr watercourse contrary to the WRA 1991. The first incident Boon assured the Agency that this would be the case. occurred in February 2003 when clay on the company’s However, a few months later, Mr Boon, in the absence of industrial site was washed into a surface water drain and the company chemist, attempted to process 75 tonnes of from there into a local watercourse. The company was fined the by-product. There was a substantial release of nitrogen £5,000. The second incident occurred in March 2003 dioxide, a gas which can cause harm to human health. The when diesel oil leaked from a small storage tank on the district judge who heard the case declared that Mr Boon’s site. The company was fined £10,000 and ordered to pay actions represented a total dereliction of duty. full costs of £1,184.92. On 19 November, Kvaerner Engineering and Construction Ltd, an engineering firm, appeared before Flood defence incidents Macclesfield Magistrates’ Court charged with breaching a condition of a PPC permit held by Dalkia Utilities On 17 November, Graham Vause was fined £3,000 with Services Ltd. Under reg. 32(6) of the Pollution Prevention £2,302 in costs by Bolton Magistrates’ Court after and Control Regulations 2000 (SI 2000/1973), the refusing to remove a pile of construction materials, thereby Agency can prosecute someone other than the permit preventing the Agency from carrying out vital flood holder where the breach is committed by that other defence work on a Bolton brook. The brook’s ‘debris person. Kvaerner was contracted by Dalkia to design, screen’ (which collects any debris or rubbish before the construct, commission and performance test a combined brook flows into a culvert beneath a nearby road) needed heat and power plant at the AstraZeneca pharmaceutical clearing. However, access to the screen was hampered due site in Macclesfield. A PPC permit regulated the installation to the fact that Mr Vause, who was working at the site, and operation of the plant, attached to which a condition left about 20 pallets stacked with bricks on top of the stated that the plant had to be maintained ‘in good bank where the Agency would normally access the debris operating condition’. One component of the plant was a screen. The pallets were cleared within approximately eight storage tank for sodium hydroxide. The design of the tank weeks. However, four months later, access to the brook provided inadequate safeguards in the event of a was obstructed again. Mr Vause was asked and agreed to malfunction in the system. As a result, 22 tonnes of sodium remove the pallets. However, they continued to block hydroxide was accidentally released into the site’s trade access for a further two weeks. When the Agency effluent system. Although the incident resulted in minimal contacted him, he refused to co-operate. A written warning environmental damage, the consequences of the release was issued but the material was not removed. Eventually, could have been substantial. The company was fined the Agency arranged and paid for removal of the pallets. £6,000. The prosecution was brought under flood defence bye- laws. Sources: Environment Agency press releases; ENDS Report. STRATEGIC ISSUES : ELM 15[2003]6 383

Strategic Issues

Compiled by the Faculty of Law, University of the West of England

Headline Issues European Union adopted a directive requiring member • Biofuels states to set targets to be reached by 2005 and 2010, Environment, Food and Rural Affairs Committee, substituting petrol and diesel with biofuels (para. 4). Seventeenth Report, Session 2002–2003 (HC 929) Problems with the enquiry • World Summit on Sustainable Development 2002 – From Rhetoric to Reality The Committee’s inquiry was hampered throughout by the House of Commons Environmental Audit high degree of uncertainty surrounding the relevant data. Committee, Twelfth Report, Session 2002–2003 The Committee also laments, on numerous occasions, how (HC 98) the observations of key witnesses lacked clarity. In • Government’s Response to the Environmental particular, the Government is described as appearing Audit Committee’s Tenth Report, Learning the ‘muddled and unfocused’ (para. 57) with regard to its Sustainability Lesson biofuel policy. The responsibility for the policy is shared Environmental Audit Committee, Sixth Special between five departments: DEFRA; the Department of Report, Session 2002–2003 (HC 1221) Trade and Industry; the Department for Transport; • Greening Government 2003 Customs and Excise; and the Treasury (para. 55). The Environmental Audit Committee, Thirteenth Committee notes that although the policy, at a general Report, Session 2002–2003 (HC 961) level, is clearly one of support for a substitution of biofuel in place of fossil fuel in transport, the ‘mechanisms used … have had little effect so far’ (para. 57). Biofuels The report suggests that a workable policy will not begin to be possible as long as the Government fails to Environment, Food and Rural Affairs Committee, resolve a fundamental ambiguity, i.e. what the primary Seventeenth Report, Session 2002–2003 (HC 929) objective of shifting towards biofuels should be. Two possible objectives are offered by the Committee, each This report was compiled from evidence submitted by a potentially having different actions: the first is to support voluminous 32 witnesses, in order to establish why, despite UK farming industry; the second is to reduce greenhouse considerable cuts in duty rate, the use of biofuels remains gas emissions. low. The Environment, Food and Rural Affairs Committee addresses the following principal themes: Primary policy objectives considered • the current extent of crop growth in the United British Sugar and Cargill claim that farmers of biofuel crops Kingdom for alternative use would see increased demand for their product. This is • a cost-benefit analysis of expanding production echoed by DEFRA, which stated that ‘opportunities for • the contribution of biofuels to sustainable diversification [e.g. biofuels] within farming can have development benefits in maximising income’ (para. 33). According to • how production can be encouraged DEFRA, these opportunities would protect and create jobs • learning from examples of best practice in other in farming and its associated industries. Of course, this countries. effect would only be seen if the crops were grown in the United Kingdom (para. 38). What are biofuels? It is perhaps significant that the Treasury has indicated that its support for biofuels is not intended as a Biofuels, as defined in the report, are ‘transport fuels that mechanism for subsidising production in farming. Rather, are produced from plant material’ (para. 1). The focus on the aim is to create a climate of investment which is transport (as opposed to the many other applications of conducive to long-term supply contracts between farmers biofuel) is justified because in this context biofuels are of crops and producers of fuel (para. 36). British Sugar, a thought to constitute the only feasible renewable potentially major producer of fuel, stated that the alternative to fossil fuels. Bio-ethanol, predominantly company was confident that it could contract with farmers starch and sugar crops, is produced for petrol engines, at satisfactory rates, but only with the necessary financial whilst biodiesel is made from plant oils for use in diesel support for the industry. In order to entice the engines. With the aim of increasing use of such fuels, the Government into providing greater financial support, 384 ELM 15[2003]6 : STRATEGIC ISSUES

British Sugar estimates that up to 300,000 jobs could Petroleum Industries Association took the view that be created from five per cent inclusion of bio-ethanol to burning crops for heat and power would be more the fuel industry. productive than making transport fuel from the crops. By contrast, the Committee considers that the The Committee also notes, however, that within the employment prospects are easily overstated. Attention was evidence of the Energy White Paper (DTI February 2003), given to evidence of DEFRA suggesting that ‘the direct the costs per tonne of carbon saved from biodiesel levels of employment are low’ (para. 43). DEFRA claimed production are broadly comparable to those for electricity that a 100,000 tonne biodiesel plant would employ generation using offshore wind turbines, which the around 62 staff, and a similar bio-ethanol plant would Government strongly supports (para. 26). employ around 70 staff. If this is the case, then the boost Indeed, on balance, the Committee agrees that to employment would be measurable in the thousands biofuels are the most effective transport fuel substitution rather than the tens or even hundreds of thousands. until the hydrogen cell becomes commercially available. If, however, the primary objective of the policy on Although the increased use of biofuels is not necessarily biofuels were to reduce carbon dioxide emissions, a the most efficient way to reduce greenhouse gases, the contribution would be made to the UK’s efforts toward Committee agrees that it is nonetheless worthy of support its commitment to the Kyoto Protocol. By 2012 a (para. 28). reduction by 12.5 per cent of greenhouse gas emission The Committee states that no firm conclusions are below 1990 levels must be reached. The national goal is possible until greater clarity is provided in the following to emit 20 per cent less greenhouse gases by 2010 than regards: in 1990 (and 60 per cent by 2050). Evidence suggests that this would be best achieved • clarity from the Treasury on data of current and future by obtaining our energy crops from imports, rather than levels of taxpayer subsidy aimed at promoting a domestic production. Importation would not assist UK renewable energy industry, which, it is hoped, will employment as it would if fuel were produced domestically. ‘enable a better informed debate on how a broad- Tropical crops ‘use a different photosynthetic pathway’ based renewable strategy should develop’ (para. 26) (para. 19) making a more efficient use of the highest light • commission by the Government of a full scientific intensities. A report for East of England Development study to assess the effects on biodiversity of Agency concluded that bio-ethanol from Brazil was 10 expanding cultivation of biofuel crops (para. 32) pence per litre cheaper than if it were made from wheat • economic appraisal to be carried out by DEFRA, ‘as a or sugar beet in the United Kingdom. This is due to greater matter of urgency’, of the effect a UK-based biofuels photosynthetic efficiency, along with cheaper costs in industry would have on farming (para. 40) tropical countries for labour and transport. • publication by all parties involved in domestic Contrary to this argument, Lord Whitty stated that if industry, who claim a boost to prosperity, of robust the United Kingdom produces crop for its own use as models to back up claims (para. 44). biofuel, the ‘adverse environmental impacts of transporting the fuel long distances [are minimised]’ (para. 21) along, The Committee also recommends the appointment of one of course, with the costs of such transportation. Lord government representative to ‘lead on biofuels’ (para. 56), Whitty also argued that self-sufficiency of biofuels would to co-ordinate across the five departments involved. improve fuel security through decreased reliance upon Overall, the Committee’s report is of considerable imported fuel. Specifically, Lord Whitty provided in his value. The Committee has compiled a comprehensive guide evidence that although biodiesel can be produced to the way out of the current morass of data uncertainty competitively elsewhere in the world, it is difficult for such and policy confusion. Readers are left in no doubt as to fuels to meet the high standards obtainable by rape-based the ineffective measures in place so far, and inadequate biodiesel (para. 21). evidence to affirm what should be done. It is hoped that An important additional environmental consideration the evidence will be available quickly in order for the is that related to nature conservation. English Nature stated Government to initiate a well-informed policy. that oil seed rape is beneficial for crop biodiversity (para. 29). Not all are in agreement. In particular, the RSPB has Emma Mould expressed concern at expansion of mass crop production in the absence of a strategic impact assessment (para 30). World Summit on Sustainable Development 2002 – From Rhetoric to Reality Conclusions and recommendations Twelfth Report, House of Commons Environmental Audit With such a degree of uncertainty surrounding the Committee, Session 2002–2003 (HC 98) projections and estimations, the Committee asks whether efforts may be better concentrated elsewhere. An analysis In this report, the Environmental Audit Committee reflects of effective methods for cutting carbon dioxide, carried on the UN World Summit on Sustainable Development out by Sheffield Hallam University, showed, for example, held in Johannesburg in September 2002. The Summit that biofuels actually rate lower than condensing gas sought to rectify the continuing global problems in respect boilers (para. 24). Thinking along this line, the UK to poverty, resource use and access to clean water and STRATEGIC ISSUES : ELM 15[2003]6 385 sanitation through reaching an agreed plan of action for were the Declaration’s ‘overarching objectives’ (para. 11) efforts to attain sustainable lifestyles. of sustainable development. Great emphasis was placed The United Kingdom was amongst 180 nations to on the notion of creating a ‘global society’ to be ‘cognisant commit to the resulting Johannesburg outcomes: a political of the need for human dignity for all’ (para. 2). Thus, the declaration, Plan of Implementation and partnership Declaration arguably goes beyond the emphasis on initiatives. national sovereignty in the Rio Declaration; in this respect, The Committee focuses on the measures undertaken it makes a valuable contribution. by the UK Government to implement its Johannesburg commitments, and the mechanisms in place for monitoring Plan of Implementation and reviewing its progress, believed by the Committee to be ‘crucial in maintaining credibility of these projects’ The Committee criticises the Plan of Implementation, (para. 29). highlighting its ‘vagueness’ (para. 81), and complains (at para 16) that ‘only 17 commitments might be considered The Summit – a ‘missed opportunity?’ specific, measurable, achievable, realistic and timely, and only 7 could be considered completely new and not Although the Summit was acknowledged to reinvigorate restating existing commitments’, which is not particularly the slow progress of the Rio Earth Summit ten years encouraging considering the 531 commitments made. By previously in achieving global commitment towards way of reinforcement, the Committee states that the Plan sustainable development, few expected that the Summit is ‘not sufficiently robust in terms of targets and delivery would reach a consensus. This scepticism was due largely goals’ (para. 79) and that commitments are ‘too indirect to the vast amounts of topics that were proposed for to enable effective auditing’ (para. 81). In this, the discussion, and the Summit’s ‘unwieldy preparation Committee concurs with Lord Holme’s comments to the process’ (para. 1). effect that the targets are ‘distant and long-term’ (para. Despite this, the Committee feels that the Summit 91). Therefore, the Plan is observed as being only a ‘achieved more than many expected’ it to, providing a ‘framework for action’ (para. 79). ‘helpful step along the path to sustainable development, It is highlighted in the report, through the evidence if implemented effectively’ (para. 7). The Committee of DEFRA, that negotiations were ‘tough’ (para. 37); this considers that the outcomes were ‘solid’, albeit that caused difficulty in securing stronger commitments, participants ‘struggled to break new ground beyond despite the UK and EU efforts in recommending ‘more existing commitments’ from the Rio Declaration and ambitious targets’ compared to the United States ‘who Millennium Development goals (para. 5). The outcomes took a less progressive approach to sustainable of the Summit contain a selection of positive targets and development’ (para. 37). For example, the United Kingdom commitments which are ‘helpful’ in achieving sustainable put pressure on securing targets to increase the use of development, but the Committee considers it was a renewable energy, but was blocked by US efforts (para. ‘missed opportunity’ (para. 26) and is particularly 39). ‘disappointed’ with the small number of specific targets That said, the Committee does acknowledge that the and timetables achieved given the range of commitments Plan contains over 150 ‘inspirational’ commitments made (para. 27). covering ‘a diverse range of issues’ (para. 13). The key The Committee supports the UK’s prioritisation of commitments pertain to sustainable consumption and poverty eradication and access to clean water, and believes production, water and sanitation, energy, oceans, that the Summit’s avowed focus on water, energy, health, biodiversity, chemicals, education, forests and trees, agriculture and biodiversity (WEHAB) ‘proved an effective corporate accountability and small island states. The framework’ for discussions (para. 10). Committee identifies important new commitments, including ‘most notably’ the work programmes on access Johannesburg Declaration to water and sanitation, with the target to ‘halve by 2015 the proportion of people without access to basic The Committee does not discuss the Johannesburg sanitation’ (para. 7). Equally innovative was the agreement Declaration in any great detail, perhaps reflecting the fact to develop a 10-year framework of programmes to that it adds little new material to the previous accelerate the shift to more sustainable patterns of commitments in the Rio Declaration and the Doha consumption and production (para. 14). Also welcome is Ministerial Conference of the World Trade Organisation the creation of poverty-reduction programmes designed in 2001. Nevertheless, the Committee gave the to ‘improve access to affordable and environmentally Johannesburg Plan of Implementation an ‘impressive sound energy’ (para. 8). The Committee applauds the Plan’s billing’ (para. 12). acknowledgement that sustainable management of natural The Johannesburg Declaration confirmed the resources and of the environment is essential for poverty commitment to achieving sustainable development, having eradication and ‘should be reflected in poverty reduction economic and social development, alongside and sustainable development strategies’ (para. 22). environmental protection, at its core. Poverty eradication, To resolve these deficiencies, the Committee changing consumption and production patterns and recommends ‘that the Government develops and publishes managing the use of natural resources for development a specific action plan’ to implement the Summit’s 386 ELM 15[2003]6 : STRATEGIC ISSUES commitments, ‘which would form the basis of subsequent relating to environmental protection and sustainable audits’ (para. 81). development’ (para. 99), urging the United Kingdom to support such reform. Partnerships Challenges for UK implementation: the future The Committee praises the Summit by welcoming the ‘extensive range’ (para. 28) of partnerships created, The report welcomes the Government’s commitment to ascribing to them the status of ‘the most novel outcomes’ ‘producing concrete results’ in the Summit’s aftermath (para. 17). The Summit identified 264 partnerships, (para. 62). The Committee ‘strongly supports DEFRA’s comprising voluntary collaborations between civil society efforts to ensure that the Johannesburg commitments are groups and the Government, thus adding impetus to the incorporated into the mainstream of existing departmental Summit’s governmental commitments. Among the work programmes’, using existing implementation partnerships is that between Greenpeace and Shell mechanisms such as delivery agreements for public service Renewables, promoting affordable renewable energy. agreements targets. It is considered important that these The Committee emphasises the importance of commitments are ‘swiftly embedded’ throughout monitoring these partnerships ‘to ensure that they amount government (para. 57). to more than a re-branding of existing initiatives’ (para. However, the Committee is concerned that there has 28) and supports the UN’s requirement that they submit been ‘no distinct process’ (para. 53) of follow-up actions. a report on their activities every two years. DEFRA has the most responsibility for promoting sustainable development and reporting on the progress towards goals The UK’s preparation to the UN Commission on Sustainable Development. It is responsible for six of the main Summit commitments, Despite the Committee’s opinion that the United Kingdom including sustainable consumption and production. The delegated effectively (it was ‘impressed by the organisation remaining commitments have been passed to other and co-ordination’ (para. 46) of the delegation and the departments, such as the Department for International delegation’s ‘realistic and sensible approach to Development which is responsible for water and sanitation, negotiations’ (para. 43)), the Committee is in no doubt and the Foreign and Commonwealth Office whose that the preparation for the Summit was ineffective. The responsibilities include renewable energy and energy Committee observes that the United Kingdom was ‘slow efficiency. to capitalise on the sustainable development With respect to the progress made by the relevant communications opportunity offered by the Summit’ departments, the Committee is impressed that many gave (para. 49). In this respect, the Committee agrees with the full support to the commitments, seeking to incorporate RSPB’s point that the communication strategy was ‘too them where ‘relevant and appropriate’ in relation to the little too late’ (para. 44) in raising public awareness of Spending Review 2004. It is, in the Committee’s view, sustainable development. Moreover, the initial confusion ‘essential that Government ensures they are fully reflected surrounding the attendance of Michael Meacher (the then in Spending Round 2004 as specific targets and objectives Environment Minister) added to the Committee’s ‘fears about in Public Service Agreements and Service Delivery ineffective planning’ (para. 45). The fact that the Government Agreements’ (para. 60) in the absence of separate considered excluding the most important Minister to the implementation mechanisms. Summit merely because it wished to ‘avoid accusations of a More specifically, in terms of the progress made to large Ministerial ‘junket’’ (para. 35) undermined the meet ‘the most important domestic commitment’ of importance of the Summit agenda, and was described as ‘an Johannesburg, there have been plans to develop a appalling own-goal, serving only to detract media coverage Sustainable Production and Consumption Strategy, having further from the Summit’s purpose’ (para. 49). energy and waste policy at its centre. The Committee recognises the immensity of the assignment, yet is The UN Development Programme optimistic that this strategy ‘could pave the way for a radical review of the use of resources in the UK’, offering a Interestingly, the Committee considers the role of the UN ‘key opportunity to weave together strands of existing Environment Programme (UNEP) to be a weak link in the energy, waste and procurement policy and ensure that delivery of global sustainable development. It is not alone; each reinforces sustainable resource use’. However, this numerous EU and Canadian Parliamentarians expressed will only be achieved if the strategy takes an ‘enthusiastic concern that UNEP is not a ‘fully fledged UN agency’, approach’, which it is urged to do, ‘avoiding merely having less status within the UN than specialised agencies, cobbling together existing policies into a strategy for including the World Health Organisation (para. 97). An business as usual’ (para. 77) and outlines, candidly, the essential part of the UNEP’s role is to facilitate regional barriers to achieving targets (which the Government has delivery of the Summit outcomes, and this co-operation failed to do in the past). at regional level is vital for a global environmental outlook Auditing is one of the most vital ingredients to on sustainable development. Against this backdrop, the effective implementation. The Committee has Committee considers that the UNEP’s ‘status should be recommended that the Government establishes ‘a enhanced to reflect its important role as the key UN facility systematic means for following-up progress’ on all of the STRATEGIC ISSUES : ELM 15[2003]6 387 partnerships made (para. 69). The report welcomes the criticised for its failure sufficiently to develop the International Organisation of Supreme Audit Institutions Government’s policy on Education for Sustainable (INTOSAI) initiative in seeking to develop guidance in Development (ESD). The Department’s Sustainable auditing. Praise is given to one of its members, the UK Development Action Plan for Education and Skills (the National Audit Office, for taking the lead in this area by Plan) seeks to address these criticisms. It has built upon authorising a draft paper which the Committee believes the report compiled by the Sustainable Development ‘may form the basis of guidance for audit institutions’ in Education Panel in February 2003 in conjunction with a identifying how the performance of the Johannesburg Plan Sounding Board. The Plan has been well received, with of Implementation might be assessed (para. 82). However, Jonathon Porritt (Chairman of the Sustainable the Committee recommends that DEFRA and the Development Commission) notable amongst those who Sustainable Development Commission work together in have recently commended it. the future to report progress against the Summit In response to the Environmental Audit Committee’s commitments, keeping Parliament regularly informed. criticism that the DfES has so far failed to demonstrate Reform is clearly needed of the UN mechanisms, any clear vision in relation to ESD, the DfES’s Plan has especially the Commission of Sustainable Development identified delivery partners and channels such as (CSD) and the UNEP. At present, there is little confidence Teachernet, an education website for teachers and school that these will be in a position to monitor progress in managers, which it will use to help achieve its aim of achieving the Summit’s goals. The Committee ‘welcomes promoting awareness of ESD. The Director of Strategy the UK’s role in pressing for reform of the CSD, and the and Communications within DfES now has the new monitoring and review arrangements’ (para. 96). responsibility of ensuring that there exists a strategic These new arrangements consist of reviewing the progress framework guiding ESD, which includes mechanisms for towards the Plan of Implementation in the first year of identifying the sources of expertise and the resources the process, and, during the second (‘policy’) year, to necessary to facilitate ESD in both formal and informal consider the forms of corrective action to be taken to education. The DfES expresses its gratitude in particular meet the needs of the Johannesburg commitments, to the Sustainable Development Commission, Forum for therefore keeping ahead of developments. the Future and the Council for Environmental Education; it considered their collaboration vital for the development Conclusion and success of the Plan. It intends ESD to become an integral part of education as opposed to the bureaucratic Overall, the Committee has an upbeat take on the Summit. add-on which the Environmental Audit Committee was At the very least, the Summit achieved what it set out to anxious that it did not descend into. The aim is that ESD achieve, in terms of a declaration, Plan of Implementation will provide everyone with easy access to online resources and partnerships containing commitments towards and make existing best environmental practices sustainable development. Many doubted that this level commonplace. of achievement was possible in the climate immediately Following the Committee’s astonishment that ‘the before the Summit. DfES has the audacity to offer less than two weeks for Although the Summit’s outcomes and the UK’s comment on its draft action plan for sustainable delegation skills were praiseworthy, the Committee is right development’ and its recommendation that the ‘DfES to point to a sense of missed opportunity. With a declaration launches a full twelve week consultation in line with Cabinet providing little elaboration on the Rio Declaration, a Plan of Guidelines after the next Sounding Board meeting’ (para. Implementation lacking detail and directness and doubts 40 of the Committee’s Tenth Report), the DfES draws surrounding the UN auditing institutions, it would be wrong attention to the fact that its Plan has been based upon to view the Summit as a resounding success. The UK the Sustainable Development Education Panel’s draft Government, however, has come out of the events with strategy, which was itself five years in the making and was considerable credit; there is a good prospect of the United open to public consultation. The DfES argues that its aim Kingdom delivering not only its own national commitments, is to have an impact on ESD immediately by seizing upon but playing a lead role in reforming UN institutions where the momentum of the Panel’s work and cutting down on they are currently wanting. bureaucracy. In addition, it states that the implementation Lindsay Baxendale and development of the Plan requires ongoing collaboration with other organisations, including DEFRA, DCMS, DfID, SDC, CEE, DEA1 and Forum for the Future. Government’s Response to the Its expectation is that there will be regular evaluation and Environmental Audit Committee’s Tenth reviews of the Plan, which will be open for comment. The Report, Learning the Sustainability Lesson Environmental Audit Committee, Sixth Special Report, Session 2002–2003 (HC 1221) 1 DEFRA – Department of the Environment, Food and Rural Affairs; DCMS – Department for Culture, Media and Sport; DfID – Department for International Development; SDC – Sustainable Development In the Environmental Audit Committee’s Tenth Report, the Commission; CEE – Council for Environmental Education; DEA – Department for Education and Skills (DfES) was heavily Development Education Association. 388 ELM 15[2003]6 : STRATEGIC ISSUES

DfES also points out that over 60 education and considers that ESD is already very explicit within environmental organisations from both the public and citizenship. There are also existing resources and materials private sectors commented on the draft plan, which in place to support it, including units within the detailed ultimately led to specific actions within the final Plan, guidance for teaching citizenship produced by the including: Qualifications and Curriculum Authority. For example, unit 6, ‘Developing our school grounds’, invites key stage 1 • engagement and participation of young people and 2 pupils to consider how economic choices affect • curriculum to integrate rather than add on the community and sustainability of the environment. In • encouragement of toolkits, website and networks addition, the DfES has collaborated with numerous • international and global contexts. organisations in order to produce materials, including the Department for International Development, which has The Committee additionally expressed concerns about the resulted in the guide ‘Developing a Global Dimension in Secretary of State’s decision to incorporate the the school curriculum’. It recognises, however, that there environmental management and ESD agendas into one is still room for improvement, and has identified subjects action plan. It felt that caution had to be exercised in such as geography, design technology, science and terms of ensuring that ESD in educational policy remained citizenship as areas in which ESD will be integrated. a high priority. In response, the DfES justifies the Plan by commenting that it is important to emphasise that Further and higher education sustainable development relates not only to green issues but to society and the economy as well. By fully integrating In 1993, the Government published a major report, these aspects into one plan, it anticipates that sustainable entitled Environmental Responsibility: an Agenda for development will be more clearly understood. The Plan Further and Higher Education, known as the Toyne Report. has aimed to include activities ‘to inspire and stimulate It argued that every further and higher education knowledge and awareness of sustainable development’ institution should adopt and implement a strategy to (para. 40) and promote a ‘practise what you teach’ ethos develop environmental education as well as improve its in schools. A member of the Teacher Training Agency (TTA) environmental practice as an institution. The has now attended a meeting of the Sounding Board and Environmental Audit Committee considered that the has agreed to remain as its TTA contact. The Sounding majority of further and higher education institutions had Board is to keep the DfES informed of the Plan’s failed dismally to take on board any of the report’s findings. effectiveness and of any proposals to ensure its future The Committee recommended that the DfES and the success. The DfES has also undertaken to continue Higher Education Funding Councils evaluate the findings working alongside DEFRA, co-ordinating its efforts in the of Forum for the Future’s Higher Education Partnership promotion of sustainable development. for Sustainability report. The Higher Education Partnership In order to support the Plan, the DfES comments that for Sustainability began in 2000 and comprised of Forum it intends to draw upon current resources and use them for the Future and 18 UK higher education institutions. more efficiently, rather than introduce additional resources. Its aim was to help the institutions develop their own strategies and share their experiences across the sector. Formal education It identified the contributions which higher education institutions could make to sustainable development Whilst the Environmental Audit Committee recognised the through their roles as: importance of schools establishing ESD learning programmes independently, it recommended that the DfES • places of learning and researchch, forming and informing introduce a national framework to support the process. the leaders and decision-makers of the future The DfES rejects this proposal as unnecessary and refers • major businessess, where prudent resource use not to OFSTED’s recent report, Taking the first step only saved money but safeguarded reputations forward..Towards an education for sustainable •key community players, as employer, purchaser and development (15 September 2003, HMI 1658), in which amenity provider with a major impact on the wider it is observed that ESD is already implemented in a variety world of influential ideas and technological of ways based on teachers’ professional judgments of their development. pupils’ needs. The DfES considers that the existing National Healthy Schools Standard also incorporates ways In response, the DfES comments that it does plan to consider in which schools may introduce and develop ESD, as does the findings of the report. In addition, the Higher Education the Eco-Schools system, although the DfES agrees with Funding Councils intend to undertake research into the the Committee that eco-schools should not be the key demand for ESD by graduate employers with a view to ESD model. In addition, the Plan has established the DfES’s integrating ESD into courses not usually associated with it. intention to explore regional and local networks to support both formal and informal education. Informal public education The EAC also recommended that the DfES explore the possibilities of integrating ESD more effectively and The Environmental Audit Committee severely criticised explicitly into the current teaching of citizenship. The DfES DEFRA’s two major sustainability awareness-raising campaigns STRATEGIC ISSUES : ELM 15[2003]6 389 as less than half-hearted, ill-focused and poor value for Greening Government 2003 money. It recommended a more long-term and tactical approach, focusing on priority issues such as waste and Environmental Audit Committee, Thirteenth Report, energy use. The new initiative should be continually Session 2002–2003 (HC 961) evaluated and fully funded, while resources should be used efficiently and not wastefully. Future mass media Greening Government 2003 is an initiative to provide an campaigns should demonstrate practical ways in which institutional framework of sustainable development which both individuals and institutions could change their covers all aspects of government, from policy making to behaviour and, to support this, incentives, rewards or operational management. Sustainable Development in reassurance should be offered. Whilst the Committee Government: First Annual Report, published by the acknowledged that a number of different government Government in November 2002, represents the new departments have participated in a review of their own official format for reporting on this theme (replacing the sustainable development communications, it considered annual ‘Green Ministers’ reports which began in 1999). that all departments should take the findings of the review The new report was based on a questionnaire sent out to into account and shape their communications accordingly. all departments in May 2002. Only the summary report In response, DEFRA declares its commitment to (Part 1) was officially published by the Government, but ensuring a more targeted approach to its campaigns, and the complete departmental responses (Part 2) were made agrees that this approach would more likely be effective. available on the DEFRA website in the form of a database. However, in order to guarantee that this is indeed the Thus, the main aim of the Environmental Audit correct approach, it proposes to undertake a study (which Committee’s Thirteenth Report is to evaluate the progress it aims to complete by April 2004) to assess the potential made by Government in ‘mainstreaming’ environmental impact of an issue-specific campaign to reduce carbon considerations, drawing on the information provided by dioxide emissions and address the consequences of the questionnaire. The Committee’s concluding analysis climate change. The study will be linked to the recent is rather downbeat: while ‘there is an impressive range of Energy White Paper, published by the Government in [sustainable development] policies in place … this agenda February 2003, entitled Our Energy Future – Creating A has little impact on departments’ real priorities’ (para. 5). Low Carbon Economy. It sets out a long-term strategy for the UK energy policy. DEFRA’s study will aim to consider Grey areas of green concern the current marketing environment within which communications would operate. This task includes The Committee’s initial objective in examining the First identifying target audiences and setting realistic goals in Annual Report (above) was to assess whether the terms of the level of behaviour change which informal questionnaire itself was adequate, and highlight any campaigns could achieve, as well as the timescale and inconsistencies in the Government’s review. On a positive budget necessary to bring about the change. In addition, note, the Committee is complimentary about the the study will identify any barriers that may potentially transparency and accountability benefits afforded by affect the success of a campaign, and consider the reproducing the questionnaire on DEFRA’s website. possibilities for removing or at least reducing these However, the Committee proceeds to express concern over barriers. obvious gaps and errors in the data. It also criticises the DEFRA also agrees that all government departments insufficient and overly concise coverage of the published should engage in the process of reviewing and developing report (i.e Part 1), citing in particular the lack of quantified their sustainable development communications. DEFRA information with regards to policy issues. Additionally, a draws particular attention to its co-sponsorship of the number of questions in Part 2 of the questionnaire, such current Futerra review, which, it believes, will help to as those relating to objectives and targets, were deemed identify opportunities for improved practice. rather open-ended and subject to various interpretations by departments. Questions of this kind were apt to Conclusion produce limited ‘hard’ data on which to base firm conclusions. In response to the Environmental Audit Committee’s harsh As well as finding flaws in the Government’s coverage criticisms, the Government appears to have leapt into of the questionnaire and construction of the document action. The inception of the Sustainable Development itself, the Committee raises four general areas of concern: Action Plan for Education and Skills has given rise to expectations that ESD will be afforded greater importance • department objectives and targets within the education sector. Through its strategic • policy screening and appraisal measures, the DfES hopes that its leadership abilities will • staff resources no longer be called into question. However, it remains to • management operations, be seen whether these policies will be fully funded and successfully implemented. all of which portray a lack of commitment to the Greening Faye Williams Government initiative. 390 ELM 15[2003]6 : STRATEGIC ISSUES

Objectives and targets four were unclear, eight were negative and three failed to respond at all. Furthermore, only two departments out of The extent of environmental mainstreaming can be the total 19 had published environmental appraisals in measured by its incorporation into departmental the last year, and even then only for selected projects. objectives and targets. Ominously, the majority of Such obvious dismissal of the Green Ministers’ request departments were found to have produced no new extracts heavy criticism from the Committee, which views environmental objectives and targets in the last year. When the deficit as evidence of departments’ reluctance to asked the extent to which sustainable development had implement and maintain any formal recording system. Yet, been encompassed within public service agreement (PSA) departments claim that a move towards integrated targets, a wide range of inconsistent information was appraisal has rendered the screening requirement returned. While this was largely due to flaws in the redundant, a view that is echoed in Part 1 of the structure of the questionnaire, some responses were of Government’s First Annual Report: great concern to the Committee. The Department for Culture, Media and Sport (DCMS), for example, stated ‘This year many departments … have reported that that ‘it was mainly concerned with indicators on poverty, environmental appraisals are increasingly an intrinsic social exclusion and education, and had no specific part of the wider decision making process and sustainable development targets’ (para. 31), despite its therefore keeping a log … is not a meaningful potentially key role in changing values and behaviour indicator of how well the department considers through raising awareness and environmental education. environmental issues.’ (cited at para. 40) The Office of National Statistics (ONS) also admitted that environmental concerns were not covered in its service The Committee strongly disagrees. While it supports the delivery agreement, nor did it have any future plans to initiative, it also expresses concern over departments’ incorporate them. failure to take a disciplined approach to sustainable Although the Committee criticises such departments development in government: ‘If departments are indeed for their lack of commitment to the greening agenda, carrying out integrated appraisals, it follows that they must particularly where it presents such significant challenges, be screening new policies for environmental impacts’ (para. others were shown to have displayed a more positive 42). Thus, departments must first prove their commitment approach. The Department for Transport, Local to Greening Government by maintaining and making Government and the Regions (DTLR) and Department for publicly available a central list of the results. Only then Education and Skills (DfES) both acknowledge the need can they be relied upon effectively to integrate such to review their aims and objectives, specifically in relation appraisals into the wider decision-making process. to sustainable development. However, due to lack of ‘hard’ evidence available in the First Annual Report, the Committee also finds it Staff resources necessary to draw on its own analysis of sustainable Part 1 of the questionnaire enquires about the size and development in PSAs, undertaken in its last Pre-Budget nature of departments and the resources they specifically Report. This shows that (excluding those targets relating devote to the sustainable development agenda. The to DEFRA) only four primarily environmental objectives indication that nine departments have established a were identified out of some 160 in total – a statistic separate, dedicated environmental protection division is cited by the Committee as a ‘dismal reflection’ on the a positive result, although it should be considered that progress of Greening Government. this constitutes only half the number targeted by the While accepting that target setting cannot be pursued questionnaire. Overall, the data highlight wide differences for its own sake, the Committee criticises ‘the almost between departments, with the DfID employing 32.2 universal failure by departments to set new environmental whole time equivalent (WTE) staff, out of 1,385, in its objectives and targets’ (para. 27), seeing it as a grey area own Environmental Policy Department, while the ONS of Greening Government synonymous with inadequate devotes only 0.3 WTE staff out of its 3,800 total, despite resources, priorities and dedication. its involvement in producing environmental accounts and resource productivity indicators. Policy screening and appraisal The relatively low grading of staff involved in sustainable development compounds this problem – the The Committee considers policy appraisal to be a crucial highest-ranking official disclosed in the questionnaire aspect of sustainable development, a notion which was being grade 7. Furthermore, the percentage of time accentuated in 2000 by the Green Ministers’ report of allocated to sustainable development work is that year. This required all departments to screen new disappointing and fluctuates dramatically, but in most policies or policy developments for environmental impact, cases the figure is under 20 per cent. In certain to maintain a list of such screenings, and to carry out departments anomalies between senior staff and appraisals where necessary. The 2002 questionnaire sustainable development units (SDUs) are also specifically asked departments if such a record was being predominant – for example, the senior officials in kept, and results clearly showed that many were flouting Department of Health (DH) and Department for Work the duty. Only four submitted a positive answer, another and Pensions (DWP) are not based in the central offices STRATEGIC ISSUES : ELM 15[2003]6 391 alongside the SDU teams, but situated in different of one per cent per annum, with an overall reduction of locations altogether. Such an arrangement sits uneasily seven per cent. However, some individual departments with the Committee, which feels that it can only hinder have conspicuously failed to meet this level, and have even effective operational management and the need to exert allowed carbon emissions to increase in some cases. On a leverage on central policy divisions. The Committee related point, the Committee attacks the ‘abysmal expresses a lack of confidence in the Government’s performance’ (para. 51) depicted by departments in terms commitment to implementing sustainable development, of water consumption (only five out of 19 met the March the low level of staff resources devoted to the agenda 2002 reduction target) and waste recovery (only six had ‘reflecting the low priority accorded to it’ (para. 19). met the 40 per cent target set in 1999). In particular, DCMS, DfES, DH, IR and ONS are singled These findings highlight further areas of grey for the out by the Committee as departments from which far Committee, as lack of commitment to greening operations greater dedication was expected given the specific reflects the need for structured systems to monitor such challenges sustainable development poses for them. activities. Consequently, the Committee requests that the Sub- Committee of Green Ministers (ENV(G)) investigate this Sustainable development within government: grey area of green commitment further in its 2004 green or grey? questionnaire. Flaws in the structure of the questionnaire and Greening operations discrepancies in departmental responses have undoubtedly made it difficult to draw precise conclusions As Government departments are major employers and on the progress of sustainable development in estate managers, there is considerable scope for them to government. Despite this, the Committee is highly critical manage their activities with a view to reducing environmental of the results it has ascertained. While some departments harm. Again, the questionnaire results portray a mixed do illustrate a degree of commitment to the Greening performance which varies with each department and Government initiative, others are flagrant in their dismissal operational targets. The proportion of renewable energy of the agenda. Throughout its report the Committee purchased fluctuates dramatically for each department, expresses a sense of disappointment, suggesting that, the lowest being 0 per cent, and the highest reaching 75 overall, there remain prevalent areas of grey amongst the per cent. In terms of reducing carbon emissions across Greening Government initiative. the whole estate, the Government has exceeded the target Stephanie Ashman 392 ELM 15[2003]6 : EUROPEAN STRATEGIC ISSUES

European Strategic Issues

Anna Syngellakis

University of Portsmouth

Headline Issues that, although there are some exceptions, the problem is • Towards a Thematic Strategy on the not resource consumption but its associated environmental Sustainable Use of Natural Resources impacts. Recognising that natural resources provide the basis Communication of the Commission to the for the three pillars of sustainable development – economic, Council and the European Parliament, COM social and environmental – the Commission’s ultimate 2003/572, final, Brussels, 1 January 2003 objective is to allow for economic growth without further environmental degradation: in other words, to decouple • Environment Policy Review: Consolidating the one from the other. environmental pillar of sustainable The strategy proposes setting an overarching development objective of decoupling resource use and environmental Communication from the Commission to the impact as a basis for all environmental policies. It does Council and the European Parliament, COM/ not recommend reducing resource use as a primary policy 2003/0745 final, Brussels, 3 December 2003 aim. The future EU resources strategy will be aiming at creating an overall policy of systematically mapping • Promotion of cogeneration based on a useful environmental impacts arising from extraction of all heat demand in the internal energy market renewable and non-renewable resources, through to their (CHP) use in products, and eventually to pollution and waste Agreement of the European Parliament and of the issues. The strategy will therefore overlap significantly with Council to adopt the proposal for a Directive, emerging policies for greener products and waste COM (2002) 415(01), Brussels, 18 December prevention and recycling. It will also aim to integrate 2003 resource-related environmental issues into other key policies such as transport, agriculture and energy, • Measures to safeguard security of electricity potentially revitalising the EU’s ‘Cardiff’ environmental supply and infrastructure investment integration process. Proposal for a Directive of the European The communication discusses relative and absolute Parliament and of the Council, COM(2003) 740 decoupling but avoids identifying either as the preferred final, Brussels, 10 December 2003 target. This marks a climb-down by the Commission’s environment directorate – earlier drafts set absolute • Energy end-use efficiency and energy services decoupling as the objective to be attained. Proposal for a Directive of the European The strategy is based on three core tasks: Parliament and of the Council, COM(2003) 739 final, Brussels, 10 December 2003 • to gather and keep updated information on the links between resource use and environmental impacts so as to identify resource uses with the greatest potential for environmental improvement. This will include Towards a Thematic Strategy on the studies of material flows, the state of ecosystems, land Sustainable Use of Natural Resources use and marine resources, and creation of indicators of resource-related environmental impacts Communication of the Commission to the Council and • to assess policies that directly or indirectly affect the European Parliament, COM 2003/572, final, Brussels, resources: for instance, agricultural and fisheries 1 January 2003 policies impact on soil and marine resources; trade policy is important in relation to imports of tropical This Communication marks the first step in the timbers. The Commission stresses that in most cases development of a European resources strategy. The full the subsequent choice of measures will require trade- strategy is to be published in 2004 and should become offs to be made with other environmental and non- operational in 2005 with a 25-year timescale. The environmental policies alike. Commission is responding to the fact that current patterns • to identify appropriate measures, which will be of resource use have a seriously negative impact on the integrated into other policies. environment and will cause further deterioration, threatening human health and economic prosperity. However, the Concrete measures will be put forward in the full strategy, Commission’s thesis is that there is no resource scarcity and expected in late 2004. Measures will include promotion EUROPEAN STRATEGIC ISSUES : ELM 15[2003]6 393 of clean technologies, actions to make consumer products routinely used in the economic and social policies of more eco-friendly, and fiscal initiatives to internalise sustainable development. environmental costs. Targets for reducing resource use The review reiterates the need to decouple economic are unlikely to be included. growth from environmental pressures in line with the Sixth The Commission has initiated a collaborative debate Environment Action Programme and the EU Sustainable and has launched a new advisory forum of stakeholders Development Strategy. Decoupling is about balanced and member states representatives to steer the process policies which stimulate economic growth and towards publication of the strategy. employment, and at the same time protect the The resource strategy will mark a new phase in EU environment, social cohesion and human health from environmental policy. It is one of the seven thematic increasing pressures, to the benefit of current and future strategies called for in the Sixth Environment Action Plan, generations. To this effect the review calls for increased 2002-2010. By aiming for resource efficiency and efforts on: sustainable resource management, the strategy is expected to contribute to achieving sustainable • ensuring efficient implementation of existing production and consumption patterns. It is therefore part environmental legislation of the EU’s response towards implementing the objectives • strengthening policy coherence and integration, agreed at the 2002 World Summit on Sustainable including through increased use of market-based Development in Johannesburg. instruments (a Communication on the use of market The focus on environmental impacts rather than resource instruments for environmental policy is expected for consumption is likely to attract criticism, given the scale of 2005) European resource consumption in a global context. The issue • basing policies on sound knowledge and information of European levels of consumption needs to be addressed • continuing to promote sustainable development on a in order to ensure equitable access to resources. global scale http://europa.eu.int/comm/environment/natres/ • making a success of enlargement. index.htm Furthermore the review calls for particular emphasis to be placed on the so-called three ‘I’s’, the cross-cutting Environment Policy Review: Consolidating objectives which underpin environmental policy: the environmental pillar of sustainable Integration of environmental concerns into other policies, development Implementation, and Information. With regard to priority issues the review notes the Communication from the Commission to the Council and following: the European Parliament, COM/2003/0745 final, Brussels, 3 December 2003 Climate change This is the first ever systematic review and analysis of Internationally, the EU has played a leading role in European environmental policies undertaken by the developing a multilateral response to global warming and Commission since the adoption of the EU Sustainable implementing the 1997 Kyoto Protocol. Under the Development Strategy in 2001 and the entry into force Protocol, the EU has to reduce greenhouse gas emissions of the Sixth Environment Action Programme in 2002 (ELM by 8 per cent between 1990 and the commitment period 13 [2001] 3 118; ELM 14 [2002] 2 111). The review will 2008-2012. feed directly into the Commission’s progress report on The European Climate Change Programme launched the 2000 Lisbon Strategy for Sustainable Development, in 2000 has been the key vehicle to identify measures to to be submitted to the spring European Council, and will curb climate change. A major landmark measure is the EU strengthen its environmental aspects. Previous reports emissions trading scheme, which, when implemented from have been criticised for their weak environmental 2005 onwards, will help reduce climate change at a lower dimension (ELM 14 [2002] 2 111). cost to industry (ELM 14 [2002] 6 381). The Commission believes that the review makes its Despite this important progress, the situation remains activities in the environment field visible to the citizens, of concern: considering the measures already in place at thus enhancing its transparency and accountability. It has EU level and in the member states as well as those that committed itself to presenting the review annually and to are currently planned, the EU as a whole and nine member combining it with a review of main developments in states will miss their Kyoto targets. Therefore, it is crucial member states. It will seek to mobilise EU institutions and that member states swiftly implement the relevant EU member states in a joint effort to achieve common goals measures recently set in place and in parallel take by better defining common objectives. In order to do so, additional action, notably through advancing integration the review proposes to introduce the ‘Open Method of of climate change into other policy areas. Co-ordination’ in the environmental field. This means adopting targets, timetables, indicators and benchmarks, periodic monitoring and evaluation – tools already 394 ELM 15[2003]6 : EUROPEAN STRATEGIC ISSUES

Nature and biodiversity Resources management The EU has endeavoured to develop policy initiatives Recent work has focused on the development of a strategy consistent with the ambitious objective of halting the on the sustainable use of natural resources, which will decline in biodiversity in Europe by 2010. However, assess how far policy choices are compatible with the progress has been mixed. The two major pieces of overall decoupling objective. The elaboration of this legislation in this field, the Birds and the Habitats strategy will build upon a number of closely linked Directives, have recorded serious implementation initiatives, such as the Integrated Product Policy (IPP), difficulties. Infringements relating to the two Directives the strategy on waste prevention and recycling (under account for over a quarter of the instances where the development) and the Action Plan on Environmental Commission has taken legal action against member states. Technologies, which will soon be presented. The Commission has therefore stepped up efforts to provide guidance to member states (for example on Promotion of cogeneration based on a sustainable hunting) and to make better use of existing useful heat demand in the internal energy financial instruments to support nature conservation market (CHP) objectives. A key issue for the near future will be to ensure adequate funding for the management of Natura 2000 Agreement of the European Parliament and of the Council sites. In addition, it will be necessary to develop policy- to adopt the proposal for a Directive, COM (2002) relevant indicators on biodiversity to get a clearer picture 415(01), Brussels, 18 December 2003 of current trends, which the Commission is in the process of doing together with the European Environment Agency. The draft Directive on CHP aims at enabling a framework On the integration front, the overhaul of the Common to be put in place for the development of a cogeneration Agricultural Policy, CAP, in June 2003, which will decouple policy, thus putting CHP on the political agenda in Europe. subsidies from production levels, is a significant CHP is a process whereby input energy is transformed achievement in terms of nature protection (ELM 14 simultaneously into mechanical and electrical energy. The [2002] 4 241). Also encouraging in this respect is the heat produced is used for purposes such as district reform of Common Fisheries Policy. heating, water heating and refrigeration, or as industrial heat. The advantages, as compared to ‘separate generation’, are energy savings and reduced CO Environment and health 2 emissions. The Commission has been pursuing a CHP Protection of human health from environmental threats strategy since 1997. has been a constant priority for EU environmental policy. On 18 December 2003 the Council and the European In October 2003, the Commission put forward the Parliament arrived at a compromise agreement despite proposal for a new chemicals policy under which industry their strong initial disagreements. The European will have to provide information on the effects of chemicals Parliament made several concessions in order to make it on human health and the environment, as well as on safe possible for the Directive to be formally adopted before ways of handling them. Known as REACH (Registration, the June 2004 elections. Evaluation and Authorisation of Chemicals), the new The main features of the agreed compromise are: regulatory system will make a major contribution to improving health and environmental protection while at • CHP will be defined in a two-step approach the same time maintaining the competitiveness of the distinguishing between basic and high-efficiency chemicals industry and fostering innovation. cogeneration, as proposed by the Commission. The Commission has also initiated the development • A single harmonised calculation method will not be of a new strategy that will tackle environmental risks for required, as the European Parliament had preferred. human health in a broader sense. While a comprehensive (Calculation methods for co-generated energy and body of legislation addresses the vast majority of single timetables were a major issue of dispute.) Instead, pollutants, there is little knowledge about the combined alternative calculation methods may now be used until effects of the various toxic agents in the environment, in 2010 or even for an unlimited period. However, the particular on vulnerable groups of society such as children. Commission will be invited to submit further proposals Yet incidents of diseases caused by environmental factors for harmonisation if this proves necessary. are increasing. Preliminary WHO estimates suggest that • Member states will be required to evaluate their almost a third of the global burden of disease can be national potential for cogeneration and report to the attributed to these factors. The Environment and Health Commission, which could, if necessary, make further Strategy initiated in June 2003 seeks to generate and pool proposals. No binding targets for increasing the share knowledge about the interaction between the environment of CHP were introduced, as the European Parliament and health to strengthen EU capacity for policymaking in had originally demanded. this area. • Micro-generation plants were defined as being plants with a maximum output below 50 kWe, a definition sponsored by the European Parliament. EUROPEAN STRATEGIC ISSUES : ELM 15[2003]6 395

• Requirements for micro-plants access to local d) the need to ensure adequate levels of reserve electricity grids are also to be simplified by member generation capacity or equivalent measures on states. More specifically, owners of small and micro- the demand side; plants will be able to use certified values instead of e) the need to promote the use of electricity measured data for the calculation of primary energy generated from renewable sources in line with savings, which means less administrative requirements. Directive 2001/77/EC on the promotion of Again, this was an amendment put forward by the electricity produced from renewable energy European Parliament. sources in the internal electricity market; f) the need for a degree of diversity in electricity Measures to safeguard security of electricity generation in order to ensure a reasonable supply and infrastructure investment balance between different primary fuels; g) the need to encourage energy efficiency and the Proposal for a Directive of the European Parliament and adoption of new technologies, in particular of the Council, COM(2003) 740 final, Brussels, 10 demand management technologies, renewable December 2003 energy technologies and distributed generation; h) the need for continued operation of the network The political shockwaves from the blackouts experienced in the event of system failure at an individual point in several EU countries in the summer of 2003 created an or points in the network and the cost related to urgent need for the European Commission to respond with mitigate such supply disruption; the present energy security draft legislative package. It i) the need for ongoing renewal of the transmission consists of a Directive on electricity infrastructure and and distribution networks to maintain the security of supply, a decision revising guidelines for trans- performance of the network; European electricity and gas networks, and a regulation j) the need for a cost effective provision of on gas transmission networks. This package is designed electricity to promote investment in the EU energy sector. • to ensure minimum standards on network security, in The proposed Directive on electricity supply and consultation with their neighbouring countries; to this infrastructure investment aims to put in place a framework effect the regulatory authorities in member states shall within which member states shall define general, publish performance standards for transmission and transparent and non-discriminatory policies on security distribution system operators in terms of occurrence of electricity supply compatible with the requirements of of interruptions of final customers as a result of a competitive single market for electricity. Transmission transmission network incidents system operators and national energy regulators are given • to maintain a balance between electricity demand and increased responsibilities in producing and monitoring generation capacity, including the encouragement of investment strategies. Renewable energy generation is also the efficient use of energy as well as the being promoted. encouragement of new generation companies to enter The objective is to promote the proper functioning the market of the EU internal market for electricity by safeguarding • to ensure that network investment decisions prioritise security of electricity supply and by ensuring an adequate increased demand size measures and take into account level of interconnection between member states. the need for: In more detail, the draft Directive requires member a) increased possibilities for connecting renewable states: electricity b) increased opportunities for customers to exercise • to define and publish the roles and responsibilities of their rights to choose supplier transmission system operators and suppliers, and the c) the need to ensure a high quality service at a minimum standards they must adhere to. In doing so, reasonable price, in particular for customers in member states shall ensure that new market entrants remote and isolated regions and companies with small market shares are not • on a regular basis, to submit investment plans by unreasonably burdened and that the impact of the transmission system operators for an adequate level measures on the cost of electricity for final consumers of cross-border interconnection capacity to the is evaluated. Member states shall take the utmost regulatory authority for endorsement, following account of: consultations with the Commission. a) the internal market and the possibilities for cross- border co-operation in relation to security of The draft Directive requires transposition by the member electricity supply; states by 1 January 2006, and a progress report by the b) the need for reductions in the trend rate of Commission to the European Parliament and the Council growth of electricity demand in order to meet no later than 31 December 2007. the Community’s environmental commitments; c) the importance of ensuring continuity of electricity supplies; 396 ELM 15[2003]6 : EUROPEAN STRATEGIC ISSUES

Energy end-use efficiency and energy industries, where there are already incentives for the services development of energy efficiency measures, are excluded Proposal for a Directive of the European Parliament and • appoint a body or agency that will oversee the savings of the Council, COM(2003) 739 final, Brussels, 10 obligations, the energy services obligation, and the December 2003 task of monitoring and verifying the fulfilment of these obligations With the proposed measures on energy end-use efficiency • establish publicly overseen loans, grants, subsidies etc. the Commission aims at achieving a number of for energy end-use efficiency, especially for complementary objectives: investments with comparatively long payback requirements or high transaction costs • to contribute to the mitigation of greenhouse gas • adopt a public sector target, expressed in terms of an emissions in view of meeting the EU’s Kyoto emission annual improvement of total energy efficiency of a reduction target of 8 per cent in 2008-2012, as well cumulative 1.5 per cent per year, attributable to the as the individual targets of the acceding states. With implementation of energy services, energy efficiency binding targets on member states to save 1 per cent programmes and other energy efficiency measures in per year of all energy supplied between 2006 and the public sector 2012, it estimates that the targeted 6 per cent total • require member state regulators or their equivalent energy saved by 2012 would contribute almost half bodies for energy distribution and retail sales of grid-

of the CO2 emissions reduction needed to comply bound energy to take measures for the introduction with the EU’s Kyoto protocol target of innovative tariffs, cost recovery regulations, revenue • to improve the European Union’s security of supply caps and similar instruments and obligations to by reducing energy demand and thus lessening import promote energy services, energy efficiency dependency, as envisaged in the Commission’s Green programmes and other energy efficiency measures as Paper ‘Towards a European Strategy for Energy a means of optimising revenues Supply’ (COM 2000, 769, 29 November 2000) • establish energy efficiency programmes that promote • to complement the legislation on the internal energy and facilitate the provision of energy services and market, designed to improve efficiency on the supply energy efficiency measures, such as energy auditing, side, by developing the market for energy services on energy and tariff advice provision, the provision of the demand side financial instruments for energy savings, etc • to allow more rapid intervention if necessary to shift • ensure that end-users are provided with competitively or reduce peak loads on the infrastructure of grid- priced individual metering and informative billing that bound energy, such as electricity. Recent blackouts reflect their actual energy consumption and, as nearly in the EU have highlighted the necessity of managing as possible and when appropriate, its actual time of energy demand. use. Metering and billing should thus include information on prices and consumption and other The draft Directive requires member states to implement technical details that allow consumers to regulate their the following measures: own consumption and to take full advantage of any energy services, energy efficiency programmes and • remove barriers and provide credible information, other energy efficiency measures offered them mechanisms, tools and incentives for companies such • report on the administration and implementation of as energy distributors and retail suppliers, energy this Directive. service companies, equipment installers, consultants and all other prospective and qualified providers to According to the Commission the main obstacles offer energy services and energy efficiency preventing full integration of end-use efficiency measures programmes and measures their implementation and into the internal energy market range from lack of a their financing. harmonised and credible framework of instruments, • adopt general national targets of annual 1 per cent mechanisms, definitions and information regarding energy cumulative savings to promote energy end-use efficiency services and measures, to institutional and legal efficiency and to ensure the continued growth and barriers, fragmentation of the efficiency market, disparity viability of the market for energy services of discount rates, and problems in financing efficiency • ensure that retail suppliers or distributors of measures for the household or domestic sector, as well as electricity, natural gas, fuel (heating) oil and district for small and medium-sized enterprises. As a result the heating do not just offer energy but also actively Commission estimated that the average cost in many promote energy services, energy efficiency measures member states of saving a unit of (off-peak) electricity in and/or energy audits for all end-use sectors, including the domestic sector is around €0.26/kWh, compared to the domestic and commercial sectors, the public the average (off-peak) price for delivered electricity of sector, and small and medium-sized enterprises. €0.39. Similar gaps between the cost of savings and the However, the set target is 5 per cent of their price of delivered energy exist for the other energy carriers. customers by 2012. Most energy-intensive process The Commission expects that the reform of the energy EUROPEAN STRATEGIC ISSUES : ELM 15[2003]6 397 market should promote competition not only between • failure to regulate the nuclear sector which distorts different energy sources but also between investments in the market substantially, since it often receives state energy end-use efficiency and investments in energy subsidies and competes unfairly with non-nuclear supply. generators Highly critical responses to the European • weak targets and allowing potentially too many Commission’s proposals have emerged both from the derogations European Parliament and environmental groups. Already • long-distance transmission of energy which is in October the European Parliament’s rapporteur on fundamentally inefficient and unsustainable electricity liberalisation, Green MEP Claude Turmes, had • expense of producing the necessary extra capacity launched a powerful attack on EU energy commissioner and upgrading grid systems. Loyola de Palacio’s emerging strategy to deal with blackouts. Friends of the Earth and WWF, although An alternative strategy put forward by the MEP and supporting the energy efficiency proposals in principle, environmentalists would promote a decentralised, raised several objections. In particular, the proposed renewable and genuinely competitive EU energy sector. efficiency measures could be perceived as ‘mere window- While maintaining EU energy market liberalisation, dressing’, given that they were issued simultaneously with measures would focus on: the draft Directive promoting energy security via investment in new electricity generation capacity and • strengthening the Directive on the eco-design of network infrastructure. energy-using equipment • implementing the cogeneration Directive Key issues of concern, both with regard to energy security • radical energy efficiency measures to restrain demand and efficiency and market competitiveness, are: to up to 20 per cent, especially at peak times (a measure which reportedly even the Energy • strategy seen as high risk because it would create a Commissioner accepted could be up to 75 per cent highly integrated electricity market with a few, very cheaper than buying more power) large companies based on large-scale nuclear and coal • promotion of decentralised generation with plants power generation located close to demand to ensure supply security. • presence of risks such as those experienced in summer They should be powered by gas, biomass or other 2003 when nuclear and coal stations had to be wound renewable energy sources to enable Europe to meet down in several countries due to lack of cooling water its Kyoto climate gas emission commitments. 398 ELM 15[2003]6 : INDUSTRY SOUNDINGS

Industry Soundings

David Pocklington

British Cement Association1

Anti-social behaviour reasonable enjoyment of their property’, with a fine of up Anti-social behaviour is estimated to cost over £3 million to £1,000 for ignoring such a ruling. per annum in England and Wales alone, and recently the Government has signalled its intention to ensure that Noise nuisance police, housing and environmental health officers take steps to tackle such problems in the community.2 Although Noise is a well-recognised form of nuisance, and a recent many of the issues described as anti-social – disruptive report of the UK Noise Forum4 highlights developments neighbours, abandoned vehicles, graffiti and litter – are in this area. Effective remedies are not always available, covered by existing environmental legislation, an Anti- but the Scottish Anti-Social Behaviour Bill, introduced on Social Behaviour Bill is currently passing through 28 September 2003, contains provisions for the creation Parliament which will confer additional powers on the of a 24-hour fixed penalty notice for the generators of authorities in order to assist them in their task. noise, which it is hoped will overcome the difficulty of It is planned to institute ‘Shop ‘em and Stop ‘em’ applying a daytime noise limit. schemes for informing on graffiti vandals, with a database Another particularly Scottish problem is the nuisance to assist in the identification of the perpetrators through created by the current fashion for laminated flooring. their trademark ‘tags’. Operation ‘Scrap It’ was launched Whilst the effect of high heels on bare boards is clearly in Liverpool and London from October 2004 to target the same south of the border, the preponderance of multi- the removal of abandoned vehicles within 72 hours, and occupancy dwellings in Edinburgh, Glasgow (and Operation ‘Gate It’ will be introduced in February to elsewhere) increases the apparent scale of this problem, address the problem of dirt and crime in alleyways. Graffiti although it is as yet uncertain how this can be resolved will be also covered by a ‘Scrub It’ initiative, support for through policy or technical guidance. this and other schemes being given by the Crown Complaints about train horns, particularly from new Prosecution Service, which will provide a team of lawyers rolling stock, are a source of constant complaint to Defra offering assistance through a helpline and other measures. and to the Noise Abatement Society. This is becoming Whilst such issues are clearly recognisable as ‘anti- more prevalent as a result of two factors: the long-overdue social’, the growth of leylandii in middle-England does not introduction of new trains; and louder audible warnings normally register on the same scale. However, following now required by health and safety legislation. the failure of a private members’ bill initiated by Stephen Train company procedures can also exacerbate this Pound, the Government has introduced an amendment source of nuisances, for example the requirement that a to the Anti-Social Behaviour Bill with the objective of driver test the functioning of the horn prior to leaving the giving powers to local authorities to tackle this problem. depot. In the case of London Underground, most depots Some species of leylandii may grow at over 2.5 metres are close to built-up areas, and this practice gives an per annum, and it is estimated3 that about 10,000 unwelcome wake-up call as several trains begin their daily disputes arise as a result of excessively tall trees and service prior to rush hour. shrubs. In its 2001 consultation, Towards a National Ambient Councils are to be given powers to intervene in such Noise Strategy, the Government proposed establishing cases, and a resident would be able to obtain a local an Expert Group on Noise, which received an overwhelming authority ruling against neighbours ordering them to trim 96 per cent ‘yes’ vote in the responses. However, in a back a hedge if it grows to over two metres in height and meeting with representatives of the National Society for blocks light or access to property. A ruling could also be Clean Air, Lord Whitty indicated that there would be no granted if a hedge ‘adversely affects the complainants’ funding available before 2005 at the earliest. In the context of the £74 million budget for noise mapping in England and Wales, and the recent tranche of noise research contracts running into millions of pounds, it is 1 The views expressed in this article are those of the author, and do not surprising that DEFRA has been unable to find the modest necessarily reflect those of the British Cement Association or its funding to support an expert group. member companies. 2 R Ford, ‘Police who ignore anti-social behaviour “should be sacked”’, The Times, 15 October 2003, p. 10. 3 Stephen Pound MP, originator of the earlier Private Members’ Bill on intrusive hedges. 4 ‘UK Noise Forum’, NSCA Briefing No. 34 (October 2003). INDUSTRY SOUNDINGS : ELM 15[2003]6 399

rather than the fireworks themselves. This year, the Hazardous waste Environment Agency Wales has sought to bring this to the public’s attention.8 The Landfill Directive 99/31/EC5 has introduced a further The Agency expressed its concern that bonfires might complexity into EU waste management legislation as to be an excuse for burning controlled waste ‘as a means of whether, if at all, hazardous waste can become non- cost-free disposal’, indicating that wastes such as tyres, hazardous. Co-disposal of hazardous and non-hazardous plastics, painted wood, mattresses and other items are wastes is banned by the Directive, and the pre-treatment harmful to the environment and people’s health. of all wastes is a mandatory precursor to landfilling. Since The Agency advised that only vegetation and clean the number of non-aligned landfill sites6 within the United wood should be burned. It indicated that bonfires erected Kingdom that can accept hazardous waste will reduce from before 5 November would be subject to inspection by 240 in 2002 to a total of 10 by July 2004, with none in the Agency, and if unsuitable materials were being used, Wales and in the Home Counties, there is likely to be a the landowners or the bonfire organiser would be asked significant shortfall of appropriate landfill capacity, and to remove them and dispose of them at a fully licensed the option of declassification post-treatment would site. Inspections on bonfire night would also be partially alleviate this situation. undertaken, and ‘appropriate enforcement action’ was However, at the time of writing the official position is promised in the case of infractions. one of uncertainty. At the fifth meeting of the Hazardous Waste Forum, there was a disagreement between Defra Capital offences and the Environment Agency as to whether such declassification was possible.7 One environmental success of the London Mayor has been The Agency holds the position that in the case of a campaign to force pigeons from Trafalgar Square. Shortly hazardous wastes for which there is a mirror listing in the after the Mayor’s election in 2000, the last of the sellers Hazardous Waste List, declassification is possible where of pigeon food ceased trading in the square, and as a the treatment process eliminates the waste characteristics consequence pigeon numbers have diminished from about which result in a ‘hazardous’ classification. For ‘absolute’ 4,000 to a mere 200. In an attempt to reduce this further, hazardous wastes for which there is no mirror listing, a byelaw has been introduced whereby it is now an offence declassification is not possible, i.e. where wastes are to feed the birds, with offenders liable to a fine of £50.9 hazardous per se on account of the inherent properties The first day on which the byelaw became effective was and not on account of a specific component or marked by a protest by a number of animal rights groups, components within them. including Animal Aid, London Animal Action, People for This appears to be a logical interpretation of the the Ethical Treatment of Animals, and a number of London relevant legislation, and one which will assist in the pigeon support groups. These protesters threw bread, management of hazardous wastes in the United Kingdom. cake, biscuits and corn to the birds whilst officials looked However, the Defra view is that declassification is not a on, and although there were no arrests, the Mayor’s office possibility for any hazardous waste. insists that the law will be enforced. Despite their attraction to tourists, it looks as though the pigeons’ days Remember, remember are numbered. Having introduced ‘carrot and stick’ measures to At last the health and environmental effects of the annual tackle Trafalgar Square’s other environmental problem – dioxin-fest on 5 November are receiving a greater degree that of nocturnal micturation10 – one would have thought of official attention. Through the Fireworks Act 2003, the that other cities might have adopted a similar enlightened Secretary of State is empowered to make regulations to approach. Not so in Bath, where the limestone of its minimise the risks associated with the sale and use of Georgian terraces is also under attack. However, city fireworks. Such regulations may include provisions relating councillors have indicated that the matter should be put to the supply of fireworks, the licensing of suppliers, and into the hands of publicans and nightclub owners, whom the conduct of public fireworks displays. they suggest should encourage their clients to take Bonfire night is associated with a substantial increase precautionary measures prior to leaving their in the level of dioxins in the atmosphere, although the establishments. Not surprisingly, the licensees have major source of dioxins is materials burned on bonfires ridiculed the idea, suggesting that more public lavatories would assist the problem. Unfortunately, councillors recently revealed plans to close 16 of the existing 37 facilities.

5 OJ [1999] L182/1. 6 I.e. sites that are available for general use, and are not operated by companies primarily for their own arisings. In a recent parliamentary 8 Martin Watkins, ‘Remember, Remember . . . the environment’, answer, the Secretary of State reported a higher total number of such Environment Agency Press Release, TC274/403WM (24 October sites, but this included all sites licensed to accept hazardous waste. 2003). 7 Hazardous Waste Forum papers are available at the DEFRA website 9 ‘Coo! Humans flock to feed the rats with wings’, The Times, 18 http://www.defra.gov.uk/environment/waste/hazforum. This particular November 2003, p. 10. disagreement between the Agency and DEFRA was not recorded in 10 ‘Enforcement and horizontal measures for capital offences’, ELM the minute. 14[2002]2 115. 400 ELM 15[2003]6 : BOOK REVIEWS

Book Reviews

Facing the Future; Listening to the Past. Papers does ... slow down the policy delivery system and is often from the 2002 UKELA Conference very expensive. These are often prices worth paying to get the issues raised, but it would be better if a policy could Eds. Luke Bennett and Nabarro Nathanson be developed which does adequately account for people’s (2003) United Kingdom Environmental Law Association, views in the first place, thus minimising protest and avoiding ISBN 0 9513937 4 X, p/b, 136pp, £35 non-members costs in time and money.’ Amen to that one may say, but can one really believe that such a pious hope is capable of Economics, Ethics and the Environment: Papers realisation? from the UKELA Cardiff Conference

Eds. Julian Boswall and Robert Lee Environmental Human Rights: Power, Ethics (2002) Cavendish Publishing, ISBN 1 85941 725 6, p/ and Law b, 102pp, £30 Jan Hancock Collections of conference papers can be both frustrating (2003) Ashgate, ISBN 0 7546 1986 9, h/b, 218pp, £45 and exciting. The former in that some of what is presented may not bear much coherent relationship to other parts This volume is not as wide ranging as its title suggests – of the collection, and may also be no more than a sketchy indeed how could it be in its modest length of 165 pages overview of an issue; the latter in that material which is in of text? It appears to be the result of funded research, course of preparation for some later more polished and is clearly also the product of very wide reading which publication may achieve its first public airing. Both is reflected in the 37-page bibliography. Lawyers reading emotions arise when considering these two publications this work may find most to ponder on in Chapter 4, ‘The from the annual UKELA conferences of 2001 and 2002. formal response to environmental human rights claims’. The There is rather less frustration with regard to the author here is trenchant in criticisms of both national and collection Economics, Ethics and the Environment international legal systems in doing so little to protect because all the papers follow the common conference human rights to a clean and wholesome environment, and themes of considering the economic and ethical issues is, perhaps, a little too dismissive of the role of law in stating surrounding environmental management and protection. (page 85) that ‘Expecting human rights violations to be In addition many of the contributions are of reasonably eliminated through the passing of legislation is unrealistic substantial length and could in no way be said to be mere since law cannot by itself transform social norms’. The latter sketches, although there is a distinct feeling that some part of that statement is at least open to question, whilst may well be ‘in course of preparation’. Even so there is the former part seems to ignore the role law can – and much to chew over – and quite a lot to disagree with – in does – play in protecting human beings by advancing and this collection, and that in itself is no bad thing. vindicating rights other than those classified as ‘human’. The same cannot be said about the 2002 conference Perhaps this reviewer is too entrenched in his ways volume published by UKELA itself. The papers are of very and too blinkered by almost 40 years in the law, but it uneven length, five or six pages only in some cases up to does seem to him that rights are the end product of a Anthony Hobley’s lengthy and considerable ‘Is Kyoto process in society, not the beginning, and that we might dead? Climate change after Bush’ at 27 pages, although advance the debate on rights issues if we spent at least a this is an updated version of the actual conference paper little more time asking exactly what the nature and delivered. This collection is therefore somewhat more structure of a ‘right’ is. In other words, this reviewer still patchy, and some of the contributions can be skimmed believes that ‘rights’ are mechanisms which reflect political through rapidly without taxing either one’s time or realities. In that respect, however, he suspects he does not intellect. Rather more challenging is the collective paper depart greatly from the author of the present book. Where of five perspectives on ‘The limits of environmental a departure may occur is at the experiential level: the protest’. Not surprisingly there is no degree of consensus reviewer, middle aged and cynical, concludes there is little between the various contributors who represented the one can do to change a situation in which matters have to spectrum of opinion from environmental activist through be struggled for, argued over, and indeed compromised, to industry. In brief, two contributors considered protest as opposed to being pellucidly clear and the logical can have some effect and does not need to be outcome of the application of ideals and principles. constrained, whilst another two felt it achieves little and Perhaps, therefore, the author’s enthusiasm and idealism can actually lead to more constraints on freedom of should be experienced by readers as an antidote to the world speech and expression. The ‘middle way’ was, however, weariness of this reviewer. well expressed by Richard Wilson: ‘Environmental protest D J Hughes LEGAL UPDATE ::: ELM 15[2003]6 401

Environmental Law and Management at a Glance Jenny Bough LLM, Barrister

Lecturer in Law, Imperial College at Wye, Wye Campus

This Legal Update covers developments between 1 November 2003 to 31 December 2003 or, in the case of materials issued by the Stationery Office or published by other sources, those materials issued during this period.

Royal Assent Wild Mammals (Protection) (Amendment) Bill Household Waste Recycling Act 2003 House of Lords, first reading, 18 (C 29) December 2003. Royal Assent, 30 October 2003. Scottish Parliament Ragwort Control Act 2003 (C 40) Royal Assent, 20 November 2003. Nature Conservation (Scotland) Bill Introduced 29 September 2003. Sustainable Energy Act 2003 (C 30) Royal Assent, 30 October 2003. Statutory Instruments Sustainable Energy Act 20033: explanatory notes. 2003/2591 Stationery Office. Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) Waste and Emissions Trading Act (England and Wales) (Amendment) 2003 (C 33) (No 2) Regulations 2003 Royal Assent, 13 November 2003. With effect from 24 October 2003. Made under European Communities Act Progress of Bills 1972, s. 2.

Air Traffic Emissions Reduction Bill 2003/2713 House of Lords, first reading, 10 Access to the Countryside (Exclusions December 2003. and Restrictions) (England) Regulations 2003 Energy Bill With effect from 17 November 2003. House of Lords, first reading, 27 Made under Countryside and Rights of November 2003; second reading, 11 Way Act 2000, ss 23, 32, 44, 45, 94, December 2003. 95.

Housing Bill 2003/2948 House of Commons, first reading, 8 Town and Country Planning (Costs of December 2003. Inquiries etc.) (Examination in Public) (England) (No 2) Regulations 2003 Planning and Compulsory Purchase Bill With effect from 12 December 2003. (introduced in 2002–2003 session, Made under Town and Country Planning carried over to 2003–2004 session) Act 1990, ss 35B, 303A. House of Commons, first reading, 1 December 2003; second reading, 2003/2986 (C 110) 1 December 2003; report stage, Sustainable Energy Act 2003 8, 9 December 2003. (Commencement No 1) Order 2003 House of Lords, first reading, With effect from 28 November 2003 10 December 2003. (various provisions). Made under Sustainable Energy Act Smoking in Public Places (Wales) Bill 2003, s. 9. House of Lords, first reading, 11 December 2003. 2003/2987 Sustainable Energy (CHP Provisions) Traffic Management Bill Order 2003 House of Commons, first reading, With effect from 15 December 2003. 11 December 2003. Made under Sustainable Energy Act 2003, s. 5. 402 ELM 15[2003]6 : LEGAL UPDATE

2003/3078 With effect from 1 December 2003. 2003/503 Motor Fuel (Composition and Made under Control of Pollution Act Domestic Energy Efficiency Grants Content) (Amendment) Regulations 1974, ss 31A, 104, 105. (Amendment No 2) Regulations 2003 (Northern Ireland) 2003 With effect from 31 December 2003. 2003/533 With effect from 22 December 2003. Made under Clean Air Act 1993, ss 30, Environmental Protection (Duty of Made under SI 1990/1511 (NI 15), art. 63; European Communities Act 1972, Care) Amendment (Scotland) 17. s. 2. Regulations 2003 With effect from 1 December 2003. 2003/517 2003/3145 Made under Environmental Protection Motor Vehicles (Construction and Road Vehicles (Construction and Use) Act 1990, s. 34. Use) (Amendment No 4) Regulations (Amendment) (No 5) Regulations (Northern Ireland) 2003 2003 2003/547 With effect from 1 January 2004. With effect from 1 January 2004. Air Quality Limit Values (Scotland) Made under SI 1995/2994 (NI 18), arts Made under Traffic Act 1988, s. 41. Amendment Regulations 2003 55, 110 . With effect from 5 December 2003. 2003/3235 (W 315) Made under European Communities Act 2003/534 Wildlife and Countryside (Registration, 1972, s. 2. Game Preservation (Special Protection Ringing and Marking of Certain for Irish Hares) Order (Northern Captive Birds) (Wales) Regulations 2003/593 Ireland) 2003 2003 End-of-Life Vehicles (Storage and With effect from 19 January 2004. With effect from 31 December 2003. Treatment) (Scotland) Regulations Made under Game Preservation Act Made under Wildlife and Countryside Act 2003 (Northern Ireland) 1928, ss 7C(1), 7F. 1981, s. 7. With effect from 7 January 2004. Made under European Communities Act European Union 2003/3238 (W 318) 1972, s. 2. Producer Responsibility Obligations Legislation (Packaging Waste) (Amendment) 2003/600 (Wales) Regulations 2003 Pollution Prevention and Control Commission Regulations With effect from 1 January 2004. (Designation of Solvent Emissions No 2032/2003 of 4 November 2003 Made under Environment Act 1995, ss Directive) (Scotland) Order 2003 On the second phase of the 10-year work 93–95. With effect from 15 January 2004. programme referred to in Article 16(2) of Made under Pollution Prevention and Directive 98/8/EC of the European 2003/3294 Control Act 1999, Sched. 1. Parliament and of the Council concerning Producer Responsibility Obligations the placing of biocidal products on the market, and amending Regulation (EC) (Packaging Waste) (Amendment) Statutory Rules of Northern (England) Regulations 2003 No 1896/2000. With effect from 1 January 2004. Ireland OJ 2003 L307/1. Made under Environment Act 1995, ss 2003/489 (C 38) No 2118/2003 of 2 December 2003 93–95. Waste and Contaminated Land (1997 Amending Council Regulation (EC) No Order) (Commencement No 7) Order 1420/1999 and Regulation (EC) No 2033/3298 (Northern Ireland) 2003 1547/1999 as regards shipments of New Forest (Confirmation of the With effect from 27 November 2003 certain types of waste to Tanzania and to Byelaws of the Verderers of the New (various provisions). Serbia and Montenegro. Forest) Order 2003 Made under SI 1997/2778 (NI19), art. OJ 2003 L318/5. With effect from 18 December 2003. 1; Northern Ireland Act 1998, Sched. 12; Made under New Forest Act 1949, s. 9. Northern Ireland Act 2000, Schedule, European Parliament and Council para. 4. Draft Solvent Emissions (England and Regulations (EC) No 1946/2003 of 15 July 2003 Wales) Regulations 2004 2003/493 On transboundary movements of Issued 18 December 2003. Waste Management Licensing genetically modified organisms... To be made under Pollution Prevention Regulations (Northern Ireland) 2003 OJ 2003 L287/1. and Control Act 1999, s. 2. With effect from 19 December 2003. Made under European Communities Act No 2003/2003 of 13 October 2003 1972, s. 2; Food and Environment Scottish Statutory Relating to fertilisers. Protection Act 1985, ss 7, 25; SI 1997/ Instruments OJ 2003 L304/1. 2777 (NI 18), art. 30; SI 1997/2778 (NI 2003/528 19), arts 2–4, 6, 17, 34, 38, 39, 77. No 2152/2003 of 17 November 2003 Mink Keeping (Scotland) Order 2003 Concerning monitoring of forests and With effect from 1 January 2004. 2003/496 environmental interactions in the Made under Destructive Imported Landfill Regulations (Northern Ireland) Community (Forest Focus). Animals Act 1932, s. 10. 2003 OJ 2003 L324/1. With effect from 6 January 2004. 2003/531 Made under SI 2002/3153 (NI 7), art. 4. No 2327/2003 of 22 December 2003 Control of Pollution (Silage, Slurry and Establishing a transitional points system Agricultural Fuel Oil) (Scotland) applicable to heavy goods vehicles Regulations 2003 LEGAL UPDATE ::: ELM 15[2003]6 403 travelling through Austria for 2004 within the framework of Directives 75/442/EEC Directive 98/81/EC on the contained the framework of a sustainable transport and 91/156/EEC). use of genetically modified micro- policy. OJ 2003 C264/7. organisms). OJ 2003 L345/30. OJ 2003 C289/8. 11 September 2003 in Case C-22/02 Commission Directive Commission of the European 16 October 2003 in Case C-423/02 2003/118/EC of 5 December 2003 Communities v Italian Republic (failure of Commission of the European Amending the Annexes to Council a Member State to fulfil obligations – Communities v United Kingdom of Great Directives 76/895/EEC, 86/362/EEC, failure to implement Directive 1999/94/ Britain and Northern Ireland (failure of a 86/363/EEC and 90/642/EEC as EC relating to the availability of consumer Member State to fulfil its obligations – regards maximum residue levels for information on fuel economy and CO2 environment – landfill of waste – acephate, 2,4-D and parathion-methyl. emissions in respect of the marketing of Directive 1999/31/EC). OJ 2003 L327/25. new passenger cars). OJ 2003 C289/9. OJ 2003 L264/13. European Parliament and Council Common Positions (EC) Directives 25 September 2003 in Case C-74/02 No 58/2003 of 18 September 2003 2003/105/EC of 16 December 2003 Commission of the European Adopted by the Council with a view to Amending Council Directive 96/82/EC Communities v Federal Republic of adopting a directive of the European on the control of major-accident hazards Germany (failure of a Member State to Parliament and of the Council on involving dangerous substances. fulfil obligations – Directive 1999/94/EC environmental liability with regard to the OJ 2003 L345/97. relating to the availability of consumer prevention and remedying of information on fuel economy and CO2 environmental damage. 2003/108/EC of 8 December 2003 emissions in respect of the marketing of OJ 2003 C277/10. Amending Directive 2002/96/EC on new passenger cars – failure to waste electrical and electronic equipment implement within the prescribed period). No 63/2003 of 9 October 2003 (WEEE). OJ 2003 C275/18. Adopted by the Council with a view to OJ 2003 L345/106. adopting a directive of the European 2 October 2003 in Case C-348/02 Parliament and of the Council amending EEA Joint Committee Decisions Commission of the European Council Directives 70/156/EEC and 80/ Amending Annex XX (Environment) to Communities v Italian Republic (failure of 1268/EEC as regards the measurement of the EEA Agreement: a Member State to fulfil its obligations – carbon dioxide emissions and fuel

No 123/2003 of 26 September 2003 failure to implement Directive 1999/13/ consumption of N1 vehicles. OJ 2003 L331/50. EC on the limitation of emissions of OJ 2003 C305/1. volatile organic compounds due to the No 124/2003 of 26 September 2003 use of organic solvents in certain No 64/2003 of 4 November 2003 OJ 2003 L331/52. activities and installations). Adopted by the Council with a view to OJ 2003 C275/22. adopting a regulation of the European No 125/2003 of 26 September 2003 Parliament and of the Council on OJ 2003 L331/54. 16 October 2003 in Case C-182/02 detergents. (Reference for a preliminary ruling from OJ 2003 C 305/11. No 126/2003 of 26 September 2003 the Conseil d’État): Ligue pour la OJ 2003 L 331/56 protection des oiseaux and others v Miscellaneous Premier ministre, Ministre de Council Conclusions No 127/2003 of 26 September 2003 l’Aménagement du territoire et de European environment and health OJ 2003 L331/58. l’Environnement, interveners: Union strategy. nationale des fédérations OJ 2003 C286/2. No 128/2003 of 26 September 2003 départementales de chasseurs, Forest Law Enforcement, Governance and OJ 2003 L331/60. Association nationale des chasseurs de Trade (FLEGT). gibier d’eau (Directive 79/409/EEC – OJ 2003 C286/1. No 129/2003 of 26 September 2003 conservation of wild birds – opening and OJ 2003 L331/62. closing dates for hunting – derogations). Report on the financial statements of the OJ 2003 C289/7. European Environment Agency for the No 130/2003 of 26 September 2003 financial year 2002, together with the OJ 2003 L331/64. 16 October 2003 in Case C-307/02 Agency’s replies. Commission of the European OJ 2003 C319/15. Information and Notices Communities v French Republic (failure of a Member State to fulfil obligations – Judgments Other Publications Directive 2000/21/EC – labelling of 11 September 2003 in Case C-114/01 dangerous substances – failure to (Reference for a preliminary ruling from Advisory Committee on Business transpose). the Korkein hallinto-oikeus): AvestaPolarit and the Environment (ACBE) OJ 2003 C289/8. Chrome Oy, formerly Outokumpu Annual Report 2003. Chrome Oy (approximation of laws – 16 October 2003 in Case C-325/02 ACBE secretariat, DEFRA, 6/E8 Ashdown Directives 75/442/EEC and 91/156/EEC Commission of the European House,123 Victoria Street, London SW1E – meaning of ‘waste’ – production Communities v Grand Duchy of 6DE. Also available on DEFRA website at residue – mine – sse – storage – Luxembourg (failure of a Member State to http://www.defra.gov.uk/environment/ Article 2(1)(b) – meaning of ‘other fulfil obligations – failure to transpose acbe/pubs/ar2003/default.htm legislation’ – national legislation outside 404 ELM 15[2003]6 : LEGAL UPDATE

Campaign to Protect Rural England Countryside Agency Consultation paper on Government (CPRE) response to working group report to the Effective Practice in the Implementation review of non-native species policy. of Connexions in Rural Areas. Planning – getting it right: joint briefing DEFRA website at http:// Countryside Agency publications PO Box Campaign to Protect Rural England. www.defra.gov.uk/corporate/consult/ 125, Wetherby, West Yorkshire LS23 7EP. CPRE website at http://www.cpre.org.uk/ nnspecies-policy/index.htm resources/pub/pdfs/planning/planning- Also available on Countryside Agency website at http:// getting-it-right.pdf EC Commission Proposal for a Regulation www.countryside.gov.uk/Publications/ on Certain Fluorinated Greenhouse articles/ca_150.asp Command Papers (Cm) Gases. DEFRA website at http:// 5935 Protocol to the 1979 Convention Regional state of the countryside reports. www.defra.gov.uk/corporate/consult/ on long-range transboundary air pollution Countryside Agency website at http:// fluogreengas/index.htm on heavy metals, Aarhus, 24 June 1998. www.countryside.gov.uk/ Correction slip dated November 2003. WhoWeAreAndWhatWeDo/ Hazardous Waste – an action plan for its Stationery Office. rsotc2003.asp reduction and environmentally sound management. 6000 The Government’s response to the Countryside Council for Wales ODPM: Housing, Planning, Local Hazardous Waste Forum. Government and the Regions Sustaining our environment: a review of DEFRA website at http:// Committee’s report on the draft Housing the work of the Countryside Council for www.defra.gov.uk/environment/waste/ Bill. Wales 2002–2003. hazforum/actionplan/hwf-actionplan.pdf Stationery Office. Meinir Wigley, Senior PR Officer: tel. 07720 428644. Also available on Implementation of EU Emissions Trading 6046 The Future of Air Transport. Countryside Council for Wales website at Scheme. Stationery Office. http://www.ccw.gov.uk/Images_Client/ DEFRA website at http:// Publications/38831_ENGLISH.pdf www.defra.gov.uk/corporate/consult/eu- 6047 The Government’s response to the emissions/ Transport Committee’s report on aviation. Department for Transport (DfT) Stationery Office. Control of noise from civil aircraft – the Measuring progress: baseline assessment Government’s conclusions. (A new set of biodiversity indicators). 6063 Budget 2003 and Aviation [HC DfT website at http://www.dft.gov.uk/ DEFRA website at http:// 672]: Government response. stellent/groups/dft_aviation/documents/ www.defra.gov.uk/wildlife-countryside/ Stationery Office. page/dft_aviation_026247.pdf ewd/biostrat/indicators031201.pdf

6074 Office of the Deputy Prime European Directive 2003/17/EC relating Packaging Waste Recovery and Recycling Minister Autumn Performance Report to the quality of Petrol and Diesel fuels: Targets for 2004–2008: Information 2003. Regulatory Impact Assessment. Bulletin 485/03. Stationery Office. Tony Baker, Department for Transport, 4/ DEFRA website at http:// 15 Great Minster House, 76 Marsham www.defra.gov.uk/news/2003/ 6069 Amendment to the agreement on Street, London SW1P 4DR. 031120a.htm the conservation of populations of European Bats adopted Bristol, July Department of Environment, Food Review of Agri-Environment Schemes. 2000. (The United Kingdom instrument and Regional Affairs (DEFRA) DEFRA, Nobel House, 17 Smith Square, of acceptance was deposited on 9 May London SW1P 3JR. 2002 and the amendment entered into Amendments to the Pollution Prevention force for the United Kingdom on 8 June and Control (England and Wales) Review of Badger Licensing Procedures 2002.) Regulations 2000. for England. Stationery Office. DEFRA, 4/H11 Ashdown House, 123 DEFRA website at http:// Victoria Street, London SW1E 6DE. Also www.defra.gov.uk/corporate/consult/ Council of Europe available on DEFRA website at http:// badger-licensing/index.htm www.defra.gov.uk/corporate/consult/ Environmental encounters ppc-amend/index.htm Sewerage Undertakers (Pollution 54 Third international symposium of the Inventory) Directive 2003. pan-European ecological network: Consultation on changes to the DEFRA, Water Quality Division, 3/E14 fragmentation of habitats and ecological Environmental Protection Act 1990 to Ashdown House, 123 Victoria Street, corridors: proceedings. free the Joint Nature Conservation London SW1 6DE. Riga (Latvia). October 2002. Committee (JNCC) of various constraints Stationery Office. presently upon it to enable it to operate The Disposal of International Catering more effectively. Waste to Landfill – Amendment to European regional planning DEFRA website at http:// Products of Animal Origin (Third Country 68 Spatial planning for the sustainable www.defra.gov.uk/corporate/consult/ Imports) (England) Regulations 2002: development of particular types of epa1990/index.htm Regulatory Impact Assessment. European areas: mountains, coastal zones, DEFRA, Nobel House, 17 Smith Square, rural zones, flood-plains and alluvial Consultation on the use of mechanically London SW1P 3JR. valleys. propelled vehicles on Rights of Way. Proceedings Sofia (Bulgaria). October DEFRA website at http:// The Environment in your Pocket 2003. 2002. www.defra.gov.uk/corporate/consult/ DEFRA Publications, Admail 6000, Stationery Office. mpvehicles/index.htm LEGAL UPDATE ::: ELM 15[2003]6 405

London SW1A 2XX. Also available on Modernising the Policy for Environment Agency website at http:// DEFRA website at http:// Decommissioning the UK’s Nuclear www.environment-agency.gov.uk/ www.defra.gov.uk/environment/statistics/ Facilities. yourenv/consultations/587912/ eiyp/index.htm Jeff Hoare, DTI Nuclear and Coal ?version=1&lang=_e Liabilities Unit, 1 Victoria Street, London The Producer Responsibility Obligations SW1H 0ET. Also available on DTI website Development of a Chemicals Roadmap (Packaging Waste) (Amendment) at http://www.dti.gov.uk/nuclearcleanup/ for Agency Staff (P6-012/09/TR) (England) Regulations 2003: Regulatory pdfs/decomcondoc.pdf WRc Publications, WRc plc, Frankland Impact Assessment. Road, Blagrove, Swindon SN5 8YF. James Biott, Producer Responsibility Unit, New and Renewable Energy: Prospects for DEFRA, Zone 7/F8, Ashdown House, 123 the 21st Century – The Renewables DEWAR – Effectiveness of Victoria Street, London SW1E 6DE. Obligation (Amendment) Order 2003. Decontamination Options, Wastes Arising DTI, 1 Victoria Street, London SW1H and other Practical Aspects of Recovery The Role of Anaerobic Digestion of 0ET. Countermeasures in Inhabited Areas (P3- Municipal Waste Within The Best Value 072/TR) (Radioactive Substance Performance Standards. Small Generator Issues Under BETTA. Regulation). DEFRA, Nobel House, 17 Smith Square, DTI, 1 Victoria Street, London SW1H Brown, Charnock, Morrey. London SW1P 3JR. 0ET. WRc Publications, WRc plc, Frankland Road, Blagrove, Swindon SN5 8YF. The Solvent Emissions (England and The WEEE Directive and the ROHS Wales) Regulations 2004: Regulatory Directive. Ecological Risk Assessment – a framework Impact Assessment. Gordon Tarrant, Sustainable and methods for assessing harm to Kay Sadanand, Policy Advisor, EU & Development, DTI Bay 425, 151 ecosystems from contaminants in soil: International Branch, Air and Buckingham Palace Road, London SW1W consultation. Environmental Quality Division, DEFRA, 9SS. Environment Agency website at http:// Zone 4/G15, 123 Victoria Street, London www.environment-agency.gov.uk/ SW1E 6DE. English Nature yourenv/consultations/607183/ ?version=1&lang=_e England’s best wildlife and geological UK report regarding plans and sites: the condition of Sites of Special programmes to achieve limit values set by Evaluation of Long-Term Data Sets for Scientific Interest in England in 2003. the first air quality daughter directive. Climate Change Detection and English Nature Enquiry Service: tel. 01733 DEFRA website at http:// Monitoring (X1-043/TR). 455101/2/3. Also available on English www.defra.gov.uk/corporate/consult/air- Codling, Thorne, Langford. Nature website at http://www.english- 1daughter/index.htm WRc Publications, WRc plc, Frankland nature.org.uk/news/news_photo/ Road, Blagrove, Swindon SN5 8YF. SSSI_Condition_Report.pdf Wild Bird Population: Headline indicators for Sustainable Development 2002: Field development of grant aid proposals Research Reports News Release 508/03. for the control of diffuse agricultural Number 551 Prioritising designated DEFRA website at http:// pollution (P2-261/09/TR). wildlife sites at risk from diffuse www.defra.gov.uk/news/2003/ Withers, Royle, Tucker, Watson, Scott, agricultural pollution. 031201b.htm Silcock, Smith, Dwyer. English Nature Enquiry Service: tel. WRc Publications, WRc plc, Frankland 01733 455101/2/3. Also available on Working with the grain of nature: a Road, Blagrove, Swindon SN5 8YF. English Nature website at http:// biodiversity strategy for England: the www.english-nature.org.uk/pubs/ England Biodiversity Group’s annual stock Guidance on sampling and testing of publication/PDF/551.pdf take 2002–3. wastes to meet landfill waste acceptance DEFRA website at http:// procedures: guidance. www.defra.gov.uk/wildlife-countryside/ Environment Agency Environment Agency website at http:// ewd/biostrat/stocktake2003.pdf Building Confidence in Deep Disposal: www.environment-agency.gov.uk/ The BORehole Injection Sites at yourenv/consultations/636170/ Department of Trade and Industry Krasnoyarsk-26 and Tomsk-7 (BORIS) ?version=1&lang=_e (DTI) (P3-077/TR). Carcinogens, mutagens and substances WRc Publications, WRc plc, Frankland IPPC S5.06: Guidance for the recovery toxic to reproduction (CMRS): the Road, Blagrove, Swindon SN5 8YF. and disposal of hazardous and non implementation of European Directive hazardous waste. 2003/34/EC (cmrs) and 2003/ Climate change influences on Environment Agency website at http:// 36(cmrs): consultation document. environmental and health chemical www.environment-agency.gov.uk/ DTI website at www.dti.gov.uk/ccp/ standards (X1-038/TR). yourenv/consultations/582340/ consultpdf/cmrscondoc.pdf Crane, Whitehouse, Comber, Ellis. ?version=1&lang=_e WRc Publications, WRc plc, Frankland Energy Bill: Regulatory Impact Road, Blagrove, Swindon SN5 8YF. Pollution, Prevention and Control Assessment. Regulations (PPC) food and drink Sarah Eastabrook, Energy Strategy Unit, Consultation for Waste Management companies: Version 1 – Materials for DTI, 1 Victoria Street, London SW1H Licensing, Pollution Prevention Control, General Food and Drink, Red meat 0ET. Integrated Pollution Control and processing, Poultry Processing (CD). Radioactive Substances Regulations Email ‘CD Request’ with name, address Charging schemes 2004/05. and process activity to either Joan Stone 406 ELM 15[2003]6 : LEGAL UPDATE

([email protected]) Review of land managed by Forestry 283 Environment & Heritage Service or Del Rawle (del.rawle@environment- commission Scotland. annual report and agency accounts agency.gov.uk). Forestry Commission website at http:// 1 April 2001 to 31 March 2002. www.forestry.gov.uk/forestry/infd-5tughg Stationery Office. Potential Impacts of Climate Change on Waste Management (X1-042/TR). House of Commons Papers – International Air Transport Bebb, Kersey. Session 2002–2003 Association WRc Publications, WRc plc, Frankland 929-I, II Biofuels. Dangerous goods regulations 2004. Road, Blagrove, Swindon SN5 8YF. Environment, Food and Rural Affairs Stationery Office. Committee. Proposals for revised controls on Stationery Office. International Atomic Energy discharges of radioactive waste from BAE Systems Marine Limited at Barrow Agency (IAEA) 961 Greening Government 2003. Shipyard: consultation. Environmental Audit Committee. Safety reports series Environment Agency website at http:// Stationery Office. 31 Managing the early termination of www.environment-agency.gov.uk/ operation of nuclear power plants. yourenv/consultations/625193/ 968 The Nuclear Decommissioning Stationery Office. ?version=1&lang=_e Authority: Pre-legislative Scrutiny of the Draft Nuclear Sites and Radioactive International Energy Agency Proposals for the future regulation of Substances Bill. CO emissions from fuel combustion: radioactive waste disposal at BNFL 2 Trade and Industry Committee. Springfields: consultation. 1971–2001. Stationery Office. Environment Agency’s Customer Contact Stationery Office. department: tel. 01772 339882. Also 970 The Planning Service annual report available on Environment Agency website Energy policies of IEA countries: Italy & accounts 2002/03. at http://www.environment- 2003 review. Stationery Office. agency.gov.uk/yourenv/consultations/ Stationery Office. 622108/?version=1&lang=_e 1038 Countryside Agency annual report Nuclear Energy Agency and accounts 2002–03 together with Review of the Agency’s Environmental the report of the Comptroller and Public confidence in the management of and Business Risk Criteria (E2-055/TR). Auditor General thereon. radioactive waste: the Canadian context Berman, Michaelis, Argivora. Stationery Office. workshop proceedings, Ottawa, Canada. WRc Publications, WRc plc, Frankland October 2002. Road, Blagrove, Swindon SN5 8YF. 1221 Learning the Sustainability Lesson. Stationery Office. Environmental Audit Committee. Scope and Methodology for the review Stationery Office. Office of the Deputy Prime Minister of the UKAEA Windscale authorisations (ODPM) for the disposal of radioactive waste: 1238 ECGD and Sustainable consultation. Circular Development. Environment Agency website at http:// 12/2003 The Building Act 1984: the Environmental Audit Committee www.environment-agency.gov.uk/ Building (Repeal of Provisions of Local Stationery Office. yourenv/consultations/395188/ Acts) Regulations 2003. ?version=1&lang=_e Stationery Office. 1333 Energy White Paper – Empowering Change? Government response to the UK Renewable Energy to 2020? An Consultation on Draft Planning Policy Committee’s eighth report on the energy analysis to inform policy development Statement 6: Planning for Town Centres. white paper. (X1-030/TR). ODPM website at http:// Environmental Audit Committee Mccubbin, Howes, Maryan, Talvitie, www.odpm.gov.uk/stellent/groups/ Stationery Office. Callaghan, Wilczek. odpm_planning/documents/page/ WRc Publications, WRc plc, Frankland odpm_plan_026232.hcsp 1336 US ‘Ghost Ships’. Road, Blagrove, Swindon SN5 8YF. Environment, Food and Rural Affairs Consultation on Draft New Planning Forestry Commission Committee. Policy Statement 22 (PPS22): Renewable Stationery Office. Energy. Forestry Statistics 2003. ODPM website at http:// Forestry Commission Publications, PO House of Commons Papers – www.odpm.gov.uk/stellent/groups/ Box 25, Wetherby, West Yorkshire LS23 Session 2003–2004 odpm_planning/documents/page/ 7EW. Also available on the Forestry 4 Forestry Commission England/GB odpm_plan_025517.hcsp Commission website at resource accounts 2002–03 (for the www.forestry.gov.uk/statistics. year ended 31 March 2003). Developing accessible play space: a good Stationery Office. practice guide. Public Opinion of Forestry 2003: ODPM website at http:// Scotland. 102-I ODPM Annual Report and www.odpm.gov.uk/stellent/groups/ Alister Henderson: tel. 0131 314 6337. Accounts 2003, ODPM: Housing, odpm_urbanpolicy/documents/page/ Also available on Forestry Commission Planning, Local Government and the odpm_urbpol_025676.pdf website at http://www.forestry.gov.uk/ Regions Committee. website/pdf.nsf/pdf/scotpof03.pdf/ $FILE/scotpof03.pdf LEGAL UPDATE ::: ELM 15[2003]6 407

Drainage and solid waste disposal: Pesticide Safety Directorate (PSD) E-Planning Compact: Current programme Regulatory Impact Assessment. of action. Pesticide Poisoning of Animals 2002: ODPM website at http:// Scottish Executive website at http:// Investigations of Suspected Incidents in www.odpm.gov.uk/stellent/groups/ www.scotland.gov.uk/library5/planning/ the United Kingdom (PB 9038). odpm_buildreg/documents/page/ epcoma-00.asp PSD website at http:// odpm_breg_025954.hcsp www.pesticides.gov.uk/citizen/wiis.htm Forestry Commission Scotland Annual Planning Policy Statements Report and Accounts 2002–03 (SE/ PPS 11 Regional Planning. Scottish Environment Protection 2003/317). ODPM Free Literature, PO Box 236, Agency (SEPA) Stationery Office, Edinburgh. Wetherby, West Yorkshire LS23 7NB Air Pollution Control Fees & Charges PPS 12 Local Development Frameworks. (Scotland) Scheme 2002: consultation. Monitoring and Enforcing Mineral ODPM Free Literature, PO Box 236, SEPA website at http://www.sepa.org.uk/ Permissions: consultation paper. Wetherby, West Yorkshire LS23 7NB. consultation/apc_amendment.pdf Scottish Executive website at http:// www.scotland.gov.uk/consultations/ Removing Plan Requirements: The Annual Report and Accounts 2002– planning/memp-00.asp modification of legislation requiring 2003. certain statutory plans for relevant local SEPA website at http://www.sepa.org.uk/ Planning Circulars authorities: consultation paper. publications/annual_report/0203/ 3 2003 Environmental Impact ODPM website at http:// full_document.pdf Assessment (Water Management) www.odpm.gov.uk/stellent/groups/ (Scotland) Regulations 2003. odpm_localgov/documents/page/ Proposed charges increases 2004/2005. Scottish Executive website at http:// odpm_locgov_025852- SEPA website at http://www.sepa.org.uk/ www.scotland.gov.uk/library5/planning/ 01.hcsp#P16_297 consultation/ pc303-00.asp proposed_charges_increase.pdf 4/2003 Title Conditions (Scotland) Act Sustainable Communities: An UDC for 2003: Consequential Amendments to the London Thames Gateway. Radioactive Substances Act 1993 (as Planning and Compulsory Purchase ODPM website at http:// amended): Application by UKAEA to Legislation. www.odpm.gov.uk/stellent/groups/ dispose of Radioactive Waste from Scottish Executive website at http:// odpm_urbanpolicy/documents/page/ Dounreay: consultation. www.scotland.gov.uk/library5/planning/ odpm_urbpol_025815.hcsp SEPA website at http://www.sepa.org.uk/ pc403-00.asp consultation/ukaea/index.htm Sustainable Communities: delivering Proposed EU directive on the through planning – Second progress Scottish Executive management of waste from the extractive report. industries: consultation paper. ODPM Free Literature, PO Box 236, Amendment to EU Emissions Trading Stationery Office, Edinburgh. Also Wetherby, West Yorkshire LS23 7NB. Scheme – Linking the Kyoto project available on Scottish Executive website at Also available on ODPM website at http:/ based mechanisms with the European http://www.scotland.gov.uk/ /www.odpm.gov.uk/stellent/groups/ Union Emissions Trading Scheme. consultations/environment/eudw-00.asp odpm_planning/documents/page/ Scottish Executive website at http:// odpm_plan_026235.pdf s report www.scotland.gov.uk/about/ERADEN/ Reducing Landfill: a Landfill Allowance ACEU-AQT/00016327/ Scheme Consultation (Paper 2003/30). The Draft Housing Bill – Government EUETSconsult.pdf Scottish Executive website at http:// Response Paper. www.scotland.gov.uk/consultations/ ODPM website at http:// Consultation Paper on the Draft environment/lasc-00.asp www.odpm.gov.uk/stellent/groups/ Implementing Regulations of the EU odpm_housing/documents/page/ Emissions Trading Scheme. Regional Advisory Councils: consultation odpm_house_025602.hcsp Scottish Executive website at http:// paper. www.scotland.gov.uk/about/ERADEN/ Scottish Executive website at http:// The Town and Country Planning ACEU-AQT/00016327/ www.scotland.gov.uk/consultations/rural/ (Regional Planning) (England) implementation.doc racc-00.asp Regulations 2004. ODPM Free Literature, PO Box 236, Consultation on the Transposition of the Report by the Auditor General for Wetherby, West Yorkshire LS23 7NB 24th Amendment to Council Directive Scotland on the 2002–03 Audit of 76/769/EEC Relating to Restrictions on Scottish Natural Heritage (SE/2003/ The Town and Country Planning the Marketing and Use of 329). (Transitional Arrangements) (England) Pentabromodiphenyl Ether, Stationery Office, Edinburgh. Regulations 2004. Octabromodiphenyl Ether in Scotland ODPM Free Literature, PO Box 236, (Paper 2003/29) Safer special waste: amendments to Wetherby, West Yorkshire LS23 7NB Scottish Executive website at http:// Special Waste Regulations (Paper 2003/ www.scotland.gov.uk/consultations/ 28). Organisation for Economic Co- environment/upeoe-00.asp Stationery Office, Edinburgh. Also operation and Development available on Scottish Executive website at Deer Commission for Scotland Annual http://www.scotland.gov.uk/library5/ Environmental performance reviews Report 2002–03 (SE/2003/291). environment/sswswr-00.asp Austria. Stationery Office, Edinburgh. Stationery Office. 408 ELM 15[2003]6 : LEGAL UPDATE

Scottish Executive’s Environmental Underground storage tanks: Code of United Nations. Economic Performance Third Annual Report Practice. Commission for Europe Scottish Executive website at http:// Scottish Executive website at http:// www.scotland.gov.uk/library5/ www.scotland.gov.uk/library5/ Environmental policy in transition: ten environment/env_annual_2003.pdf environment/undergroundtanks.pdf years of UNECE environmental performance reviews. Scottish Natural Heritage Audited Western Isles Structure Plan. Stationery Office. Financial Accounts for the year ended Scottish Executive website at http:// 31 March 2003 (SE/2003/328). www.scotland.gov.uk/library5/planning/ World Bank Stationery Office, Edinburgh. wisp1-00.asp (English version) or http:// Directions in development www.scotland.gov.uk/library5/planning/ Faith in conservationtion: new approaches Scottish Natural Heritage Annual Report wisp2-00.asp (Gaelic version) to religions and the environment. 2002–03 (SE/2003/306). Palmer, Finlay. Stationery Office, Edinburgh. United Nations. Conference on Stationery Office. Trade and Development. Division Scottish Natural Heritage Facts and on Investment Technology and World Health Organization Figures 2002–03 (SE/2003/307). Enterprise Development Stationery Office, Edinburgh. Climate change and human health: risks Environment series and responses. Strategic Environmental Assessment: Self-regulation of environmental McMichael (et al.) (eds). consultation on proposed legislative management: guidelines set by world Stationery Office. measures to industry associations for their members’ introduce Strategic Environmental firms an update, 1996–2003. Environmental health criteria Assessment in Scotland (Paper 2003/ Stationery Office. 229 Selected nitro- and nitro-oxy- 31). polycyclic aromatic hydrocarbons. Scottish Executive website at http:// United Nations. Economic and Stationery Office. www.scotland.gov.uk/consultations/ Social Council environment/seacpl-00.asp Official records, 2003: supplement 9 Commission on Sustainable The Scottish Executive Development Development: report on the eleventh Department Inquiry Reporters Unit session (27 January 2003 and 28 April Review of the Year 2002–2003. to 9 May 2003). Scottish Executive website at http:// Stationery Office. www.scotland.gov.uk/library5/ development/irury-00.asp