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Posted on: 12 November 2018
Environmental Law News UpdateTweet
In this latest Environmental Law News Update, David Travers QC, Christopher Badger, and Zander Goss consider a win for Dyson in its labelling battle with the European Commission, the prospect of bodycams for EA officers and seizure and destruction by the EA of vehicles that have been used in waste crimes.
Dyson wins energy labelling battle
Anyone who has had to litigate a case involving standards or test protocols is likely to be sympathetic to the proposition that at best they are complex and difficult to apply and at worst so unconnected with reality that they offer no insight into the relationship between the test results and the real world.
Dyson Ltd, best known for the manufacture and sale of bagless vacuum cleaners around the world applied for annulment of Commission Delegated Regulation 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners (OJ 2013 L 192, p. 1). Sir James Dyson’s grouse was that while the regime purported to mandate the provision of end user information in a way which would enable consumers to make better informed, and in this context, more energy efficient decisions, the outcome was seriously flawed in that the tests mandated were tests of empty vacuum cleaners before the bag contained dust which compromised the suction. This was a blow to Dyson whose USP was that his vacuum cleaners had no bags and suffered no loss of suction. Although buried deep in the jurisprudence of the EU his point was simple; the regime discriminated against the bagless vacuum cleaner and unfairly favoured the established manufactures of vacuum cleaners.
The Commission resisted the application, inter alia, on the grounds Celenec (European Committee for Electrotechnical Standardisation) claimed reproduceable results could only be obtained using an empty collector. (This seems a bold claim as the Commission permits a dust-loaded study in the regulations implementing the ecodesign regime for vacuum cleaners. See Commission Regulation (EU) No 666/2013 of 8 July 2013 implementing Directive 2009/125/EC of the European Parliament and of the Council (OJ 2013 L 192, p. 24).)
Encouragingly, the General Court found for Dyson Ltd. and unless an appeal is lodged the whole of the regulation will be annulled.
Before the decision consumers would have been right to wonder whether the EU regime for the provision of information not only subordinated consumers interests to those of manufacturers but worse, subordinated those interests to one established group of manufacturers. It will be fascinating to see whether the sound science and good sense represented in this decision spread to a wider range of environmental rules.
Bodycams for Environment Agency officers
Environment Agency enforcement teams in the East Midlands have adopted wearing body worn video cameras following a six-month trial in the North-East.
The trial found that wearing the cameras helped to reduce incidents of anti-social behaviour, assaults and threats against Environment Agency staff.
Footage captured on a bodycam was also used recently by the Environment Agency as part of a prosecution of an individual for wilfully obstructing officers in the execution of their duty and of using abusive behaviour. The individual pleaded guilty.
The press release suggests that the cameras will not be set to record continuously. Pete Haslock, Enforcement Team Leader for the Environment Agency in the East Midlands is quoted as saying: “Officers will switch on the cameras if and when they enter a hostile situation or where hostility may be anticipated. That could be a site where they have experienced aggressive behaviour in the past or an unknown quantity, such as on a remote river bank.” This does not suggest that it is intended that video footage will be used as a means of confirming conclusions reached by officers during a routine inspection about the extent to which any particular business is or is not complying with the conditions of its permit or of supporting any findings subsequently reported in a CAR form. The principal focus of the Environment Agency is on protecting the safety of its staff.
The cameras will also be used by fisheries enforcement officers during their routine activities.
The full press release can be found here
Environment Agency crush van in fight against waste crime
The Environment Agency recently announced that it had seized and destroyed a Ford Transit van which had been used in a string of waste crimes in and around London. Environment officers determined that much of the waste in the van had come from small building operations and small businesses. In its press release, the EA reminded businesses of their duty of care concerning waste they generate. Penalties for failure to comply with that duty can include unlimited fines in the most serious cases.
Local authorities can also use vehicle seizure as an effective tool for fighting waste crimes. In certain circumstances, a waste collection authority may sell, destroy, or otherwise dispose of a seized vehicle. Where a vehicle is sold, the Council may keep a portion of the proceeds to cover its expenses in exercising its seizure powers under s. 5 of the Control of Pollution (Amendment) Act 1989 and s. 34B of the Environmental Protection Act 1990. DEFRA have published guidance that explains the procedure laid out in the Control of Waste (Dealing with Seized Property) (England and Wales) Regulations 2015, see here.
The 2015 Regulations allow Councils to recover expenses through the sale of seized vehicles. Consequently, destruction of the vehicle may not be the preferred option, although, particularly where a vehicle has too little value to make a sale viable, destruction is useful as a visible way of deterring crime and demonstrating to the local community how a Council is tackling issues like fly-tipping. This impact can be greatly enhanced through publicity with news outlets, such as this BBC report about a van crushed by Rotherham MBC.