Environment Update October 2008
Good safety procedures and systems save the day for offshore operators
Offshore operator Amoco (UK) Exploration has succeeded in its bid to have its conviction under the Oil Pollution Act 1971 quashed.
Amoco had been convicted in Aberdeen Sheriff Court for an oil pollution incident in which 6.4 tonnes of diesel was discharged into the North Sea. The incident occurred when a storage tank was overfilled during the transfer of diesel from a supply ship.
Amoco was convicted under section 3(1)(b) of the 1971 Prevention of Oil Pollution Act, which makes the discharge of oil into the sea “as the result of any operation for the exploration of the sea bed and subsoil or the exploration of their natural resources...” a criminal offence.
In appealing its conviction, to the High Court in Edinburgh, Amoco claimed that as they were running a gas platform there was no evidence that they were engaged in the specific operation set out in the compliant against them – namely “searching and boring for petroleum”. Amoco also asked the court to consider whether the discharge of oil could properly be said to have taken place “as a result of any operation” and whether there had to be a causal connection between the discharge and a specified operation for the exploration of the seabed and subsoil or the exploration of their natural resources.
In rejecting both these arguments, the Court held that the 1971 Act created absolute liability in the event of a discharge and was not restricted to crude oil being extracted from beneath the seabed but could extend to the discharge of diesel oil which had been brought to the platform for use in activities ancillary to the main operations of exploration and exploitation. The court held that the words “as a result” must be read as meaning “arising out of the existence of an installation carrying out relevant operations” and that there was no need to establish a causal connection between the discharge and the specific activity.
Although part of the charge “searching and boring for petroleum” was accepted to be inaccurate the court held that all that is necessary for the commission of an offence is that an operator should be able to fall within the opening part of section 3(1)(b).
However, although Amoco’s contravention of the 1971 Act was confirmed, the Court held that Amoco was able to avail itself of the statutory defence set out in section 6 of the Act which provides – “it shall be a defence to prove that neither the escape nor any delay in discovering it was due to any want or reasonable care and that as soon as practicable after it was discovered all reasonable steps were taken for stopping or reducing it”.
The court accepted that Amoco had taken substantial steps to put in place all reasonable precautions, procedures and systems to guard against the possibility of oil escaping from the installation into the sea, such as: employment of experienced and competent staff, continuing training and assessment of staff, clear and unambiguous procedures for bunkering diesel from supply ships and the installation of alarms in control rooms.
In finding that the whole of the statutory defence made out, the Court held that the Sheriff had misdirected himself in coming to the conclusion that Amoco had failed to establish that the discharge incident was not due to any want of reasonable care. Furthermore, the Court also found that immediate and effective action had been taken to stop the discharge as soon as it had been discovered.
The full judgement of the High Court of Justiciary is available via the following link:
http://www.scotcourts.gov.uk/opinions/2008HCJAC49.html
New regulations improve access to EPCs in Scotland
New regulations which transpose, for Scotland, further provisions of the European Directive on the Energy Performance of Buildings, will come into force on January 4th 2009.
Under the Energy Performance of Buildings (Scotland) Regulations 2008, from January 4th 2009, anyone selling or letting any property in Scotland will be required to produce an Energy Performance Certificate (EPC). The requirement to produce an EPC however does not appear to extend to landlords renewing the leases of their existing tenants.
Under the new regulations, when deciding whether to buy or lease a building, a prospective buyer or prospective tenant is entitled to be supplied with an EPC as soon as they request information about a building, a viewing, and/or when they make a verbal or written offer to buy or lease. From 4th January 2009 owners or occupiers of public buildings must also display an EPC within the building in a place clearly visible to members of the public.
The new regulations require a register of EPCs to be maintained. The keeper of the register will only be permitted to disclose details of an EPC and/or associated data to certain individuals and in certain circumstances, namely:
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to an approved organisation, whose members may issue EPCs, when the EPC was prepared by a member of that organisation; and
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to an enforcement authority or to an officer of the Scottish Ministers when requested to do so.
The regulations also enable the Scottish Ministers and the keeper of the register to use any EPC or associated data for providing advice or guidance on the energy performance of buildings and for statistical or research purposes providing no building is identifiable from the information disclosed.
The new regulations designate every local authority as an enforcement authority. A local authority may require an owner of a building to produce a copy of the EPC for their building within 7 days of receiving a request from them to do so. Owners of buildings who fail to make an EPC available may be served with a penalty charge notice and liable to pay a penalty. If the building in question is a domestic building, or is ancillary to a domestic building, the penalty is £500, while a penalty of £1,000 will apply in all other cases. The recipient of a penalty charge notice may however, challenge the decision of the local authority by requesting a review, and where this is confirmed following review, the recipient may appeal to the Sheriff Court.
The text of the new regulations together with an accompanying executive note is available via the links below:
http://www.opsi.gov.uk/legislation/scotland/ssi2008/pdf/ssi_20080309_en.pdf
http://www.opsi.gov.uk/legislation/scotland/ssi2008/en/ssien_20080309_en.pdf
Traffic, noise and pollution all reduce property values – but not council tax liability
Can an occupier of a property apply for a reduction in his council tax banding because traffic levels on an adjacent stretch of motorway have increased so much that the resulting noise and pollution have reduced the value of his property?
This is exactly the question that the court of appeal was asked to consider.
Residents living close to the M61 in Bolton applied for a reduction in their council tax liability claiming that an increase in traffic, noise and pollution had reduced the value of their properties. Although the council tax valuation officer accepted that traffic levels had increased, he considered that it was only an environmental change and not a physical change and therefore, would not justify a reduction of the council tax by reason of a material reduction in value.
The householders appealed the valuation officer’s decision to the valuation tribunal who, in favour of the householders, decided that the increased noise and pollution levels had caused a change in the physical state of the dwellings locality that had impacted on the value. The valuation officer appealed this decision to the high court, but the tribunal’s decision was upheld, resulting in recourse to the court of appeal.
In delivering its judgment the court of appeal stated that the circumstances in which council tax payers could apply for an alteration to their valuation banding were extremely limited and that although the Local Government Finance Act 1992 allowed for a reduction in the value of a dwelling due to a change in the physical state of the dwelling’s locality, given the tight limitation, it would be contrary to the policy of the Act to permit an alteration for a reason, which, although manifesting itself locally, was part of an overall nationwide trend.
The court believed that to interpret this otherwise would be to use a limited measure as a wider opportunity to revalue properties on the basis of something which is happening throughout the land. In delivering its judgment the court said that the valuation officer is only concerned with the essential fabric and character of a house and its locality, not with matters of use, activity, enjoyment or occupation such as the particular volume of traffic on a particular date.
In allowing the valuation officer’s appeal, and distinguishing situations where the fabric or character of a road had changed as a result of the addition of an extra lane to a motorway or where a quiet street became a rat run, the court held that greater levels of traffic on a motorway which had not changed at all in its physical state was not capable of coming within the statutory language of the Local Government Finance Act 1992, and therefore couldn’t be used for the purposes of a res-assessment of council tax.
The full judgement of the court of appeal is available via the following link:
http://www.bailii.org/ew/cases/EWCA/Civ/2008/1025.html
Microgeneration equipment – invest now pay later
The Valuation for Rating (Plant and Machinery) (England) Regulations 2000 set out the classes of plant and machinery relevant to the rateable value of non domestic properties.
New regulations, the Valuation for Rating (Plant and Machinery) (England) (Amendment) Regulations 2008, came into force on October 1st 2008 amending the 2000 regulations so as to ensure that installation of plant and machinery with microgeneration capacity will not have an immediate effect on the rateable value of non domestic properties in England.
The practical effect of the amendment is that commercial rate payers who install microgeneration equipment such as solar panels, wind turbines and ground source heat pumps on or after October 1st 2008 will be shielded from any rise, as a consequence of the investment in the microgeneration plant and machinery, until the next five yearly rates review which is scheduled to take place on April 1st 2010.
The text of the new regulations and further information is available via the links below:-
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082332_en.pdf
http://www.opsi.gov.uk/si/si2008/em/uksiem_20082332_en.pdf
http://www.communities.gov.uk/news/corporate/955160
Employers welcome Opinion in Heyday case
The Advocate General of the European Court of Justice (ECJ) has provided his opinion in the “Heyday Challenge”, the case brought by Age Concern to challenge the legality of the Employment Equality (Age) Regulations 2006.
Heyday’s main challenge to the Regulations was to the provision allowing mandatory retirement at age 65. Heyday is arguing that compulsory retirement provisions are contrary to the Equal Treatment Framework Directive and therefore unlawful. Heyday is also arguing that the justification for direct discrimination should be more onerous than the justification for indirect justification.
The UK Government and employers will be relieved that the Advocate General disagreed with Heyday’s arguments. The main points of his opinion were that:
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A rule allowing compulsory retirement at age 65 is capable of objective justification;
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Such a rule may be justified if it can be reasonably justified by reference to a legitimate aim relating to employment policy and the labour market, in the context of national law;
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The means of achieving such a legitimate aim must not be inappropriate or unnecessary;
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There is no major difference between the test for justification for direct and indirect discrimination;
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National law does not need to provide a list of potential treatments which may be justified.
It should be noted that the Advocate General’s opinion is not binding on the ECJ. The ECJ’s decision is expected in early 2009, and if the ECJ follows the AG’s opinion, it will be for the English High Court to decide if the Regulations satisfy the test of objective justification.
A spokesman for the Department of Business, Enterprise and Regulatory Reform has stated that, regardless of the ECJ’s decision, the default retirement age will be reviewed in 2011, and if it is no longer found to be necessary, it will be removed.
FOR FURTHER INFORMATION PLEASE CONTACT: FIONA ROSS