Best Practicable Means - Assignment Example

Topic: By making reference to at least THREE different pieces of case LAW, Evaluate the use of BPM as a defense that is available to commercial operations against Statutory Nuisance action. Language Style: English UK Grade: 2:1 Answer: In order to Answer this question it is necessary to discuss statutory nuisance, Section 79 of the Environmental Protection Act 1990, definition of Best Practicable Means (BPM), Origins of the BPM defence and recent cases of BPM. Section 79 of the Environmental Protection Act provides the definition of statutory nuisance and includes nuisances arising from premises, fumes, gases, dust, steam, smoke, accumulations, odour, noise, animals and other matters, which are prejudicial to health or a nuisance. 1. Definition of BPM: In accordance with the provisions of the Radioactive Substances Act 1993 (RSA93), the use and keeping of radioactive substances and the accumulation and discharge of radioactive waste to the environment are strict, users must apply for permission from the Registered Environment Agency. In 1867, BPM was introduced in UK legislation by the then Alkali Act 1874, but t was unfamiliar one for some users. This concept was established into UK legislation to control emanation of hydrochloric acid, sulphuric acid and chlorine gas from alkali works engaged in manufacture of sodium carbonate from common salt. To minimise the accumulation and disposal of radioactive wastes, recently, Agency has decided to include in its authorisations, a requirement for the user to demonstrate that they employ the Best Practicable Means (BPM). The definition contained as follows: “ Within a particular waste option, the BPM is that level of management and engineering control that minimises, as far as practicable, the release of radioactivity to the environment whilst taking account of a wider range of factors, including cost-effectiveness, technological status, operational safety, and social and environmental factors”. To both keep and use radioactive materials on premises, users must apply for permission from the Environment Agency in England and Wales for authorisation from the Agency to accumulate and/or dispose of radioactive waste. Section 79(9) of the EPA 1990 provides that it is a defence against Statutory Nuisance action to prove that BPM have been used to control and mitigate the nuisance. 2. Origins of the BPM defence: Section 80 of the EPA 1990 provides that where a local authority is satisfied that a Statutory Nuisance exists, or is likely to recur or occur, they shall serve an Abatement Notice. Defendant has the right of appeal against Abatement Notice under the provisions of the Statutory Nuisance (Appeals) Regulations 1996. In the case of an appeal against a notice that requires significant expenditure, the notice is usually suspended until the appeal it determined. After hearing the appeal, the Court can quash or vary the notice or dismiss the appeal. It is a defence in some circumstances to show that the BPM have been used to prevent or counteract the nuisance, where an abatement notice relates to activities carried on at a trade or business premises. BPM involves having regard to local conditions and circumstances, financial implications and the current state of technical knowledge. There are also specific defences for complaints of noise and nuisance on construction sites and in areas where there are registered noise levels. 3. Determination of BPM by the Courts: The case of Camden LBC v London Underground Ltd1 concerned service of an EPA 1990 notice on the company in respect of noise creating from the lift-winding mechanism and generator at Russell Square underground station. The court gave a ‘provisional view’ that the defence to common law nuisance provided in section 122(3) Railways Act 1993 did not apply to all statutory nuisances. Here the court held that the prejudice to health limb in section 79 EPA 1990 meant that a statutory nuisance differed from common law nuisance as well as that Parliament could not have intended to authorise a defence where prejudicial to health was shown. However, this part of the decision was obiter since the court had decided that the notice served by the council was invalid on other grounds. As a way of obliging businesses to adopt too high a standard of abatement, Local authorities need to avoid interpreting their duty under Part III EPA 1990. They have no powers to require the most expensive, ‘state of the art’ or best available technology to reduce noise problems to a minimum. Welton v North Cornwall DC2 The requirement is that enough is done to prevent or counteract the effects of the nuisance; a somewhat ill defined concept. The BPM defence is available to protect commercial interests. The origins of the defence were to prevent such interference in the activities of business classes and the manufacturing, as would have harmful economic consequences. In Manley and Manley v New Forest DC3 illustrates this situation. This case concerned the commercial keeper of a pack of Siberian huskies, who had licence going back many years allowing the dogs to be kennelled in a commercial/mixed residential area. The problem arose from the howling of the pack. The Divisional Court accepted the findings of the Crown Court that noise abatement measures, such as glazing the kennels, would be impracticable. Nonetheless, it rejected the judge’s finding that BPM requirements would be satisfied if the kennels were relocated elsewhere, this being considered too onerous a requirement to impose upon a legitimate business. The Divisional Court acknowledged that the nuisance would continue but that it was not actionable as a statutory nuisance. The decision in Manley v New Forest DC confirms that great care is needed before serving a notice in noise cases where the BPM defence is available. 4. The relevance of BPM with regard to current enforcement practice within local authorities: The first powers applicable nationally in modern times enabling Local Authorities (LAs) to control noise were contained in the Noise Abatement Act 1960 (NAA). The NAA provided that noise and vibration which was a nuisance at common law was a statutory nuisance for the purpose of the Public Health Act 1936 (PHA). The London Local Authorities Act 2004 (LLAA) provided a power for LAs in London to issue fixed penalty notices in respect of breaches of an EPA abatement notice. If a LA takes the view that criminal proceedings for breaching an abatement notice would not be enough, it can apply to the High Court for an injunction. The court has discretion as to whether to grant an injunction, and/or urgency to justify this course of action and the particular nuisance will need to be of a sufficient weight. Breaching an injunction is contempt of court, which can effect summary conviction in a two-year imprisonment. Section 80 (7) of the Act provides a defence for the operator to demonstrate that the BPM have been used to prevent or counteract the effects of the nuisance, In the case of Statutory Nuisance due to odour from trade, industrial, or business premises. Section 80(4) would afford an inadequate remedy, section 81(5) of the Environmental Protection Act 1990 allows the local authority taking proceedings in the Sheriff Court or the Court of Session to seek an interdict. Conclusion: The Human Rights Act 1998 incorporates the provisions of the ECHR into domestic law. It is now unlawful for a public authority to act in a way that is incompatible with a Convention right. In the domestic court, ‘victim’ who is ‘directly affected’ can bring proceedings, or rely upon the Convention right. Nonetheless, a public authority will not be acting unlawfully under the HRA, if it is required to act in the manner required by some provision of primary legislation. Bibliography: Guidance on the Creation and Maintenance of Effective Noise Management Policies and Practice for Local Authorities and their Officers in Scotland, [July 2006] available at < https://www.scotland.gov.uk/Resource/Doc/1222/0034030.pdf> Nancy K. Kubasek and Gary S. Silverman, Environmental Law (6th Edition), (July 29, 2007), Christopher H. Schroeder, Alan S. Miller, James P. Leape, and Robert V. Percival, Environmental Regulation: Law, Science, And Policy, (July 30, 2006) Gary S. Moore, Living with the Earth, Third Edition: Concepts in Environmental Health Science (April 5, 2007) Read More