prosecutions | Ashbrooke Management Consultants

24 July 202424 July 2024

School technician lost a finger

A local authority has been sentenced after a school technician lost a finger while operating a machine.

A school technician at The Forest School in Horsham, lost his right index finger when it was sliced off by a circular bench saw on 13 June 2022.

The 29-year-old, who worked in the design and technology (DT) department, had been operating the saw to cut pieces of wood that were set to be used for a DT lesson. The school technician lost a finger in the accident.

While pushing one of the sheets of wood through the saw, the technician who was 27 at the time, felt a pain in his right index finger and immediately turned off the machine. As he looked down, he saw his finger lying on the bench.

A Health and Safety Executive (HSE) investigation found West Sussex County Council, the local authority in charge of the school, failed to ensure that the technician was trained to use the bench circular saw, as a result the school technician lost a finger. Whilst the technician had used the saw many times previously, he had not been trained on how to use it safely.

West Sussex County Council pleaded guilty to breaching Regulation 9 of the Provision and Use of Work Equipment Regulations 1998. The local authority was fined £16,000, ordered to pay £4,294.60 in costs and a victim surcharge of £190 at Brighton Magistrates’ Court on 3 July 2024.

HSE inspector Russell Beckett said:

Workers must be trained properly when using high risk woodworking such as bench circular saws. This incident could have been prevented had West Sussex County Council provided [the technician] with proper training.

The Provision and Use of Work Equipment Regulations 1998

The above incident where a school technician lost a finger highlights the importance of training and other issues for workers using equipment. The Provision and Use of Work Equipment Regulations 1998, often abbreviated to PUWER, place duties on people and companies who own, operate or have control over work equipment. PUWER also places responsibilities on businesses and organisations whose employees use work equipment, whether owned by them or not. PUWER requires that equipment provided for use at work is:

suitable for the intended use
safe for use, maintained in a safe condition and inspected to ensure it is correctly installed and does not subsequently deteriorate
used only by people who have received adequate information, instruction and training – in the current case, the school technician lost a finger having not received any training in the safe use of the circular saw.
accompanied by suitable health and safety measures, such as protective devices and controls. These will normally include guarding, emergency stop devices, adequate means of isolation from sources of energy, clearly visible markings and warning devices
used in accordance with specific requirements, for mobile work equipment and power presses

Some work equipment is subject to other health and safety legislation in addition to PUWER. For example, lifting equipment must also meet the requirements of the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER), pressure equipment must meet the Pressure Systems Safety Regulations 2000 and personal protective equipment must meet the Personal Protective Equipment at Work Regulations 1992 (PPE).

If your business or organisation uses work equipment or is involved in providing work equipment for others to use (e.g. for hire), you must manage the risks from that equipment. This means you must:

ensure the equipment is constructed or adapted to be suitable for the purpose it is used or provided for
take account of the working conditions and health and safety risks in the workplace when selecting work equipment
ensure work equipment is only used for suitable purposes
ensure work equipment is maintained in an efficient state, in efficient working order and in good repair
where a machine has a maintenance log, keep this up to date
where the safety of work equipment depends on the manner of installation, it must be inspected after installation and before being put into use
where work equipment is exposed to deteriorating conditions liable to result in dangerous situations, it must be inspected to ensure faults are detected in good time so the risk to health and safety is managed
ensure that all people using, supervising or managing the use of work equipment are provided with adequate, clear health and safety information. This will include, where necessary, written instructions on its use and suitable equipment markings and warnings
ensure that all people who use, supervise or manage the use of work equipment have received adequate training, which should include the correct use of the equipment, the risks that may arise from its use and the precautions to take
where the use of work equipment is likely to involve a specific risk to health and safety (eg circular saw machine), ensure that the use of the equipment is restricted to those people trained and appointed to use it – in the current case where the school technician lost a finger, the local authority should have restricted access to those workers who had received training.
take effective measures to prevent access to dangerous parts of machinery. This will normally be by fixed guarding but where routine access is needed, interlocked guards (sometimes with guard locking) may be needed to stop the movement of dangerous parts before a person can reach the danger zone. Where this is not possible, such as with the blade of a circular saw, it must be protected as far as possible and a safe system of work used. These protective measures should follow the hierarchy laid down in PUWER regulation 11(2) and the PUWER Approved Code of Practice and guidance or, for woodworking machinery, the Safe use of woodworking machinery: Approved Code of Practice and guidance
take measures to prevent or control the risks to people from parts and substances falling or being ejected from work equipment, or the rupture or disintegration of work equipment
ensure that the risks from very hot or cold temperatures from the work equipment or the material being processed or used are managed to prevent injury
ensure that work equipment is provided with appropriately identified controls for starting, stopping and controlling it, and that these control systems are safe
where appropriate, provide suitable means of isolating work equipment from all power sources (including electric, hydraulic, pneumatic and gravitational energy)
ensure work equipment is stabilised by clamping or otherwise to avoid injury
take appropriate measures to ensure maintenance operations on work equipment can be carried out safely while the equipment is shut down, without exposing people undertaking maintenance operations to risks to their health and safety

When providing new work equipment for use at work, you must ensure it conforms with the essential requirements of any relevant product supply law (for new machinery this means the Supply of Machinery (Safety) Regulations 2008). You must check it:

has appropriate conformity marking and is labelled with the manufacturer’s details
comes with a Declaration of Conformity
is provided with instructions in English
is free from obvious defects – and that it remains so during its working life

If you require advice on health and safety in your workplace, please contact one of the Ashbrooke team.

22 July 202422 July 2024

Dairy farmer pollution prosecution

A Wellington dairy farmer pollution prosecution following incident after slurry entered watercourse.

A farmer has been given 14 weeks in prison suspended for a year and ordered to pay £10,000 costs after he persistently allowed slurry to run off into a stream near his farm.

David Bartlett, aged 70, of Upcott Dairy Farm, Sampford Arundel, Wellington, appeared for sentencing before District Judge Brereton at Taunton magistrates’ court on Thursday 18 July.

He had previously pleaded guilty to three offences relating to pollution to the Westford stream, a tributary of the River Tone. He was also ordered to pay £154 victim surcharge.

In a case brought by the Environment Agency, the court heard that the farm had a long history of failing to properly contain slurry and had been warned several times in the past for causing pollution of the Westford stream.

In October 2022, Agency officers installed remote monitoring equipment on the stream which confirmed regular pollution events were continuing to occur.

Using the data from the remote monitoring, officers went to the monitoring site in December 2022 where they found significant amounts of sewage fungus contaminating the bed of the watercourse, an indication of persistent pollution.

Pollution resulted in poor quality of water

Continuing upstream towards Upcott Dairy Farm, colonies of bloodworm were evident. These are a species of pollution tolerant organism associated with poor water quality. No invertebrate life forms were noted when stones in the stream bed were turned over, further indicating the poor quality of the water.

Near the farm, one of the officers saw a nearby ditch had suddenly started to discharge a significant amount of effluent with the appearance and smell of slurry. The source was quickly traced to an overflowing underground slurry tank on Upcott Dairy Farm.

Officers also investigated the system used for applying slurry to fields. Typically, farmers will use slurry to provide nutrients to their crops or grass. Bartlett was using a simple pipe to dispose of slurry in a single location.

Although not discharging slurry at the time of the pollution event inspection, it was clear there was significant contamination of slurry around the end of the pipe and evidence that slurry had tracked down the field toward the Westford stream.

A subsequent visit found slurry being pumped on to waterlogged land with no attempt to use the slurry for crop benefit. The slurry was several inches thick in the field indicating it had been pumped over a prolonged duration in the same location.

Toward the bottom of the field there was a significant build-up of mud and slurry either side of the gateway crossing the stream. This too presented a risk of further runoff pollution into the stream.

Pollution survey revealed stream affected for 2.5km

A biologist’s survey and report confirmed that the Westford stream had experienced repeated, acute and sustained chronic pollution events by slurry. Lack of slurry storage had led to slurry being pumped inappropriately on to a single patch of land where it was likely to run-off and cause pollution.

Bartlett had failed, despite repeated warnings, to install slurry storage facilities that would allow slurry to be stored during winter when ground conditions were unsuitable.

The report stated there had been “a significant negative impact on the aquatic invertebrate community and water quality along 2.5km of Westford stream.”

Bartlett submitted a statement to the Environment Agency in which he made limited admissions, implying others, such as his neighbour and the local authority were responsible. He denied deliberately pumping slurry into the watercourse.

Judge Brereton said there were significant aggravating features in the case, including Bartlett having previously been warned over causing pollution, his failure to carry out proper checks or make structural improvements by way of an adequate, compliant slurry storage system which is capable of storing slurry having received funds from the Rural Payments Agency to pay for infrastructure that would improve the environment and not cause significant, sustained pollution incidents.

Dairy farmer repeatedly ‘failed to acknowledge’ advice

David Womack of the Environment Agency said:

This farmer has, over the years, caused numerous pollution incidents and he has repeatedly failed to acknowledge the advice given or to improve the facilities for storing or properly using slurry.

For over 30 years there has been legislation in place requiring all livestock farmers to have storage facilities capable of storing a minimum of four months’ slurry production. The 2018 Reduction and prevention of Agricultural Diffuse Pollution Regulations now also require farmers to plan all applications of slurry in order to reduce the risk of pollution. Pumping slurry on to waterlogged land is unlawful and is likely to cause diffuse pollution.

We hope Mr Bartlett will now work with us to voluntarily improve the facilities at Upcott Dairy Farm. If he doesn’t, we won’t hesitate to use other legislative powers to reduce the risk of further pollution

Pollution prosecution charges

The charges against the defendant were:

On and before the 2 December 2022 you, David Bartlett, did cause an unpermitted water discharge activity, namely the discharge of poisonous, noxious or polluting matter from Upcott Dairy Farm, Sampford Arundel, Wellington, Somerset, into inland fresh waters contrary to Regulations 12(1)(b) and Regulation 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2016.
On and before the 2 December 2022 you, David Bartlett, a Land Manager did not ensure that organic matter, namely cattle slurry, was not applied to agricultural land that was waterlogged, flooded or snow covered in that you applied organic fertilizer to waterlogged ground contrary to Regulation 3(a) and 11 of the Reduction and prevention of Agricultural Diffuse Pollution (England) Regulations 2018
On and before the 2 December 2022 you, David Bartlett, a Land Manager did not ensure that for each application of organic or manufactured fertilizer to agricultural land, the application was planned so as not to give rise to a significant risk of agricultural diffuse pollution contrary to Regulation 4(1)(a)(ii) and 11 of the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018.

Prevent pollution with effective slurry management

Effective slurry management is crucial for both environmental sustainability and farm productivity. Here are some best practices for slurry management in the UK:

Assess Nutrient Content: Use tools like the Nutrient Management Guide (RB209) to determine the nutrient content of your slurry. This helps in applying the right amount to meet crop needs.
Proper Storage: Ensure you have enough well-maintained storage to hold slurry until conditions are optimal for spreading. Covering slurry stores or allowing a natural crust to form can reduce ammonia emissions.
Application Timing: Spread slurry when crops can best utilize the nutrients, typically during the growing season. Avoid spreading during wet conditions to prevent runoff and water pollution.
Application Methods: Use low-emission spreading techniques such as trailing shoe or injection methods to minimize ammonia loss and improve nutrient uptake by crops.
Safety Measures: Always prioritize safety when handling slurry. Ensure proper ventilation and avoid entering enclosed slurry spaces due to the risk of toxic gases.
Compliance with Regulations: Stay updated with local regulations and take advantage of available grants and support schemes, such as the Slurry Investment Scheme (SIS), to improve your slurry management practices.

Implementing these practices can help you manage slurry more effectively, benefiting both your farm and the environment.

If you require environmental advice for your business, please contact one of the Ashbrooke team.

17 July 202417 July 2024

Company Director Fined

A company director fined after an employee was struck by an object while manufacturing large steel cable drums for the offshore industry.

The man, who is now 54, had been working for Code-A-Weld (Great Yarmouth) Limited when the incident happened on 19 November 2022. Although the company had manufactured steel drums previously, they had never manufactured drums of this size – with these ones weighing in excess of seven tonnes.

However, during the process, the jacking set-up failed at the company’s site in Harfreys Industrial Estate in Great Yarmouth which resulted in a catalogue of serious injuries including fractures to the man’s face and skull, and him losing the sight in one eye.

He was airlifted to hospital, placed into an induced coma and spent just under three weeks in hospital whereby he needed facial reconstruction surgery.

A Health and Safety Executive (HSE) investigation found that Code-A-Weld (Great Yarmouth) Limited failed (i) to carry out a suitable and sufficient risk assessment; (ii) control risks from welding in confined spaces; and (iii) to provide the full training required.

The investigation also found that company director, David Fowler, failed to provide safe systems of work in relation to metal fabrication work, despite previous HSE interventions regarding failure to risk assess activities in the fabrication workshop.

Had the company put in place correct measures, such as suitable risk assessment, safe systems of work and planning for jacking activity, the incident could have been prevented.

The HSE publication, Health and safety in engineering workshops provides valuable practical advice and can be downloaded free at: Health and Safety in engineering workshops.

Following a sentencing hearing at Chelmsford Magistrates’ Court on 20 June 2024, DJ Williams issued their written judgment on 5 July as follows:

Company Fined

Code-A-Weld (Great Yarmouth) Limited, of Harfreys Industrial Estate, Bessemer Way, Great Yarmouth, pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc. Act 1974. The company was fined £24,000 and ordered to pay £3,500 in costs.

Director Fined

David Fowler, of Harfreys Industrial Estate, Bessemer Way, Great Yarmouth, pleaded guilty to breaching Section 37(1) of the Health and Safety at Work etc. Act 1974. He was fined £2,000 and ordered to pay £1,500 in costs.

HSE Statement

Those in control of work have a responsibility to devise safe methods of working and to provide the necessary information, instruction and training to their workers in the safe system of working. If a suitable safe system of work had been in place prior to the incident, the life-threatening injuries sustained by the employee could have been prevented.

HSE inspector Natalie Prince

If you require advice for your business, please contact one of the Ashbrooke team.

3 July 20243 July 2024

Court Judgment Opens Litigation Floodgates

A court judgment handed down by the Supreme Court this week could open the floodgates to claims against water companies. In The Manchester Ship Canal Company Limited v United Utilities Water Limited No 2 [2024] UKSC 22, the Supreme Court Justices ruled that private individuals can bring claims in nuisance or trespass against water companies for pollution.

Background to Court Judgment

This appeal forms part of long-running litigation about discharges of foul water contaminated with untreated sewage into the Manchester Ship Canal. The Supreme Court is asked to decide whether the owner of the beds and banks of the canal, the Manchester Ship Canal Company Ltd (“the Canal Company”), can bring a claim in nuisance or trespass when the canal is polluted by discharges of foul water from outfalls maintained by the statutory sewerage undertaker, United Utilities Water Ltd (“United Utilities”).

United Utilities is the statutory sewerage undertaker for the North West of England. Its sewerage network includes around 100 outfalls from which material emanating from sewers, sewage treatment works and pumping stations is discharged into the canal. When it is operating within its hydraulic capacity, the discharges are of surface water or treated effluent, but when the system’s hydraulic capacity is exceeded at least some of the outfalls discharge foul water into the canal. There is no suggestion that these polluting discharges are caused by negligence or deliberate wrongdoing on the part of United Utilities. However, they could be avoided if United Utilities invested in improved infrastructure and treatment processes.

The Canal Company threatened to bring a claim against United Utilities for trespass and nuisance. In response, United Utilities asked the court to make a declaration that the Canal Company had no right of action. The court was not asked to decide whether the Canal Company’s claim would be successful on the relevant facts. Rather, the question was whether the claim would be inconsistent with and therefore barred by the statutory scheme for regulating sewerage established by the Water Industry Act 1991 (“the 1991 Act”).

The High Court judge agreed to make the declaration requested by United Utilities. His decision was upheld by the Court of Appeal. The implication of these judgments is that no owner of a canal (or other watercourse or body of water) can bring a claim based on nuisance or trespass against a sewerage undertaker in respect of polluting discharges into the water, unless the sewerage undertaker is guilty of negligence or deliberate wrongdoing. A claim of this kind would be prevented even if the polluting discharges were frequent and had significant and damaging effects on the owner’s commercial or other interests, or on its ability to enjoy its property. The Canal Company appeals to the Supreme Court.

Court Judgment

The Supreme Court unanimously allowed the Canal Company’s appeal. The Court held that the 1991 Act does not prevent the Canal Company from bringing a claim in nuisance or trespass when the canal is polluted by discharges of foul water from United Utilities’ outfalls, even if there has been no negligence or deliberate misconduct. Lord Reed and Lord Hodge give a joint judgment with which the other members of the Court agree.

Reasons for the Decision

The starting point is that the owner of a canal or other watercourse has a property right in the watercourse, including a right to preserve the quality of the water. That right is protected by the common law. The discharge of polluting effluent into a privately-owned watercourse is an actionable nuisance at common law if the pollution interferes with the owner’s use or enjoyment of its property. The Supreme Court was, therefore, asked to decide whether the 1991 Act excludes common law rights of action in nuisance and trespass. This is a question of statutory interpretation.

Statutory Powers

A body which exercises statutory powers, such as a sewerage undertaker, is liable in the same way as any other person if it is responsible for a nuisance, trespass or other tort, unless either it: (i) is acting within its statutory powers, or (ii) has been granted some statutory immunity from suit. If a sewerage undertaker interferes with a person’s rights, it is therefore necessary to distinguish between interferences which Parliament has authorised, which are lawful, and interferences which Parliament has not authorised, which are unlawful. When drawing this distinction, two principles are relevant. First, a person’s rights to the peaceful enjoyment of its property and to access the courts are protected by both the common law and the Human Rights Act 1998.

The principle of legality holds that fundamental rights cannot be overridden by general or ambiguous words. A statute will, therefore, only authorise what would otherwise be an unlawful interference with property rights or deprive a person of the right to bring a legal claim, if this is clear from or a necessary implication of the express language used by Parliament. Secondly, Parliament will not be taken to have intended that statutory powers should be exercised, or duties performed, in a way which interferes with private rights, unless the interference is inevitable.

The 1991 Act does not expressly authorise United Utilities to cause a nuisance or to trespass by discharging foul water through the outfalls into the canal. United Utilities’ entitlement to use the outfalls derives from section 116 of the 1991 Act. However, this entitlement is subject to a number of statutory protections for watercourses. Section 117(5) provides that nothing in section 116 (or the other relevant sewerage provisions of the 1991 Act) authorises a sewerage undertaker to use a sewer, drain or outfall to convey foul water into a watercourse. Sewerage undertakers therefore do not have statutory authority to discharge untreated sewage into watercourses. Section 117(6) prevents a sewerage undertaker from carrying out its functions under the relevant sewerage provisions so as to create a nuisance. Section 94(4) makes it clear that the common law remedies for nuisance – such as an injunction or damages – are available in addition to any remedy available by virtue of section 94. Section 186(3) further protects the owners of watercourses, and other rights-holders, by stating that nothing in the relevant sewerage provisions authorises a sewerage undertaker to damage a watercourse, or the quality of the water in it, without consent.

Unauthorised Pollution

The Court judgment concludes that the polluting discharges similarly cannot be regarded as having been impliedly authorised by Parliament, since they are not an inevitable consequence of a sewerage undertaker’s performance of its statutory powers and duties. In the present case, the discharges could be avoided if United Utilities invested in improved infrastructure and treatment processes.

If Parliament has not authorised an interference with private law rights, it would normally follow that a claimant can enforce those rights at common law. Furthermore, since sections 117(5) and 186(3) limit the authority conferred on sewerage undertakers by the 1991 Act, there must be a common law remedy where those limits are exceeded: otherwise, the sections would have no purpose.

Marcic Case

United Utilities argues that the Canal Company has no cause of action because the only way to avoid the discharges of foul water into the canal would be to construct new sewerage infrastructure. It relies on the House of Lords’ decision in Marcic v Thames Water Utilities Ltd [2003] UKHL 66 (“Marcic”), which it says established that Parliament’s intention was that the construction of new sewerage infrastructure should be a matter for the Secretary of State or the regulator, the Water Services Regulation Authority (known as “Ofwat”), not the courts.

In the Court judgment, the Supreme Court rejects this argument. There are a number of indications that Parliament did not intend the 1991 Act to exclude a claimant’s right to enforce its private property right in a watercourse. First, section 186(7) provides for arbitration where water quality has been damaged without consent, at the option of the party complaining. This strongly suggests that the complainant could alternatively choose to pursue a common law claim.

Statutory Compensation

Secondly, section 180 of the 1991 Act gives effect to Schedule 12, which makes provision for statutory compensation. Compensation is available for damage caused by the authorised acts of sewerage undertakers, but not for damage caused by acts which are unauthorised, such as the discharges of foul water into the canal. This indicates that the victims of unauthorised damage retain their common law rights of action. Otherwise, they would be left without any remedy for the damage they have suffered, which would be anomalous. They would also be treated less favourably than the victims of authorised damage, which would be perverse.

Thirdly, the Court judgment states that depriving the victims of a nuisance or trespass of their common law rights of action would be a substantial change to the law as it stood before the 1991 Act was enacted. It is unlikely that a change of this kind would have been made in a consolidation statute.

Consolidation acts are not designed to make substantive changes to the law, but rather to reorganise and restate the existing law so that it is clearer and easier to understand. Moreover, the Court judgment notes that since the 1991 Act is detailed and elaborate, it would be surprising if Parliament had left an important change in the law to be implied rather than stated expressly. In addition, the principle of legality holds that fundamental common law rights, such as a right of action to protect private property, are not to be taken to be overridden in the absence of express language or necessary implication.

In the Court judgment, the Justices noted that United Utilities relied on section 18, which empowers the Secretary of State and Ofwat to make enforcement orders for the purpose of securing compliance by sewerage undertakers with statutory and certain other requirements. These include the general duty in section 94, which requires sewerage undertakers to provide a sewerage system. Section 18(8) makes it clear that it is not possible to enforce these statutory and other requirements by bringing a claim at common law; an order under section 18 provides the only available remedy. However, this ouster only applies to causes of action that are based on a breach of a statutory or other requirement that is enforceable under section 18. If a sewerage undertaker does something (or fails to do something) which gives rise to an independent common law cause of action, for example, for nuisance or trespass, the 1991 Act does not prevent the courts from enforcing the claimant’s common law rights and awarding any available common law remedies.

The Supreme Court accepted that the regulatory scheme established by the 1991 Act, including the making of enforcement orders under section 18, might be disrupted if the court were to grant injunctions which required a sewerage undertaker to spend large sums on new infrastructure as a remedy for interferences with private property rights. The Court judgement goes on to say that might be so if such an injunction conflicted with the arrangements in the Act for the regulatory approval of capital expenditure and the charges imposed on the sewerage undertaker’s customers.

The Court judgment states however, this does not mean that common law rights of action are excluded in such a case. Instead, the courts may make an award in damages, both for past invasions of property rights and for future or repeated invasions of those rights. This would vindicate property rights in relation to watercourses until the sewerage undertaker is in a position, with Ofwat’s approval, to invest in a long-term solution.

Court Judgment Distinguishes Marcic

The Supreme Court’s conclusion that the 1991 Act does not prevent the Canal Company from bringing a claim in nuisance or trespass when the canal is polluted by discharges of foul water from United Utilities’ outfalls can be reconciled with the decision in Marcic. That case can be distinguished, first, because it did not concern the limits on the authority conferred on sewerage undertakers by the 1991 Act set out in sections 117(5) and 186(3).

Secondly, the Court judgment states that the defendant sewerage undertaker had not created or adopted the relevant nuisance, as it has in the present case. Instead, it was said to be liable for continuing the nuisance by failing to take reasonable steps to avert it by constructing a new public sewer. An essential ingredient of the cause of action was therefore that the defendant was under a duty to build a new sewer, in accordance with section 94(1) of the 1991 Act. That duty could only be enforced by the Secretary of State or Ofwat under section 18, not by the courts.

In contrast, the Canal Company’s proposed claim against United Utilities is not based on a breach of section 94(1), or any other requirement enforceable under section 18, but rather on independent common law causes of action in trespass and nuisance.

Conclusion

The Court judgment is likely to encourage other groups and individuals to consider claims against water companies following pollution incidents. The increased focus on pollution incidents involving water companies has resulted in a number of investigations by the regulator, the Environment Agency, responding to public concerns. Campaign and pressure groups will also be pleased with the Court’s decision.

If you require advice on environmental management for your business, please contact one of the Ashbrooke team.

30 June 202430 June 2024

Large scale illegal waste crime in Staffordshire

Multiple people involved in large scale illegal waste crime in Staffordshire are facing prison following a successful prosecution by the Environment Agency.

The sentencing, which led to the conviction of 5 of the defendants, took place on 2 April 2024, at Shrewsbury Crown Court sitting at Telford Magistrates, following an 8-week trial in September and October 2023.

The prosecution concerned a large-scale illegal dumping of waste at Bonnie Braes Farm in Staffordshire, with offences taking place between 1 March 2014 and 30 June 2015.  

At least 100,000 tonnes of waste was brought onto the site during the charge period, when there was no legal right to do so. This activity included a significant amount waste from excavation, alongside other mixed refuse and some asbestos.

The volume of waste added to the site meant that the land was raised by 6 – 7 metres in height. Additional concern was created by the crucial gas distribution pipeline which passes underneath Bonnie Braes Farm, one of two that supplies Stoke-on-Trent. A fracture of the pipeline would have had devastating consequences, causing disruption to the supply of gas as well as the potential closure of the busy A500 road for a significant period.

Mr Recorder Nicholls, found that the offending caused Category 1 harm to the environment due to the eyesore that the deposits caused. In considering the large scale illegal waste crime in Staffordshire, he stated the impact that the weight had on the site, created negative effects not only to the gas pipeline but also to a culvert on the site, which was found to have collapsed, causing significant flooding to the land in heavy rain. The operation of the site also caused significant disruption on lanes that were unsuitable for large vehicles and the tracking of mud from the site across the roads.

Large scale illegal waste crime in Staffordshire

We are glad to see the outcome of these prosecutions and will continue to work tirelessly to tackle environmental crime. Illegal waste sites like this, undermine legitimate businesses, undercut their prices, and blight the environment. We would urge everyone to check that a waste site is licenced before using them by checking the public register online at GOV.UK. If people suspect criminal activity, they should report it to our 24-hour incident hotline 0800 807060 or anonymously through CrimeStoppers on 0800 555111.

Environment Agency Spokesperson

Large Scale Illegal Waste Crime Sentences

Mr Recorder Nicholls imposed the sentences as follows:

Raymond Bowden,64 of Liverpool Road, Church Lawton, was sentenced to 30 months immediate custody. He was also disqualified from holding the position of a director for a period of 8 years and 3 months. A Proceeds of Crime Application is outstanding and will be determined at a future date.

Joe Frizell, 48 of Crewe Road, Shavington, was sentenced to 2 years immediate custody. He was also disqualified from holding the position of a director for a period of 6 years. A Proceeds of Crime Application is outstanding and will be determined at a future date.

James Bowden, 44 of Bignall Hill, Bignall End was sentenced to 15 months imprisonment that was immediately suspended for 18 months. He must undertake 240 hours of unpaid work. He was also disqualified from holding the position of a director for a period of 5 years. A Proceeds of Crime Application is outstanding and will be determined at a future date.

Victoria Webb-Johnson, 47 of Sydney Road, Crewe was sentenced to 10 weeks imprisonment suspended for 12 months. She was also ordered to pay a contribution towards the costs of the prosecution of £8000 and the victim surcharge.

Stefan Paraszko, 66 of High Street Silverdale, was sentenced to 11 months imprisonment that was immediately suspended for 18 months and the victim surcharge.

VWJ Earth Moving Limited was fined £11,000 and ordered to pay a contribution towards the costs of the prosecution of £8000 and the victim surcharge

Jumbo Waste and Metal Limited was fined £1, as the company is in liquidation, and the victim surcharge.

TW Frizell (Haulage & Plant Hire) Ltd was fined £1, as the company is in liquidation, and the victim surcharge.

Joe Frizell was also sentenced alongside RJC Regeneration Limited in respect of a matter that occurred at Elms Farm, Betley, Crewe. In that case waste was deposited without the benefit of an Environmental Permit and exceeded the allowances of any waste exemptions.

In respect of the Elms Farm case, Mr Recorder Nicholls imposed the following sentences:

Joe Frizell was sentenced to 2 months immediate custody to run concurrently with his other sentence – this means he received a total of 2 years immediate custody overall.

RJC Regeneration Limited was fined £8000 and the victim surcharge

Further information

In the matter large scale illegal waste crime in Staffordshire from Chester Crown Court, Joe Frizell, RJC Regeneration Ltd and Mark Oulton pleaded guilty on 18 July 2023 to offences relating to the depositing of illegal waste at Doddlespool Farm and Elms Farm, Crewe at Chester Crown Court on 18 July 2023.

Mark Oulton, 53 of Main Road, Betley, was sentenced by Chester Crown Court on 8 September 2023 to 9 months custody suspended for 18 months. In addition, he was sentenced to 130 hours unpaid work, a £5000 fine and ordered to pay a contribution towards the prosecution costs of £27,000. Mr Oulton was also made subject to a court order requiring him to remove waste illegally deposited and stored on Doddlespool Farm by 8 September 2024. 

Large Scale Illegal Waste Crime Charges

Jumbo Waste & Metals Ltd

Jumbo Waste & Metals Ltd did between the 1st March 2014 and the 30th June 2015, contravened regulation 12(1) of the Environmental Permitting (England and Wales) Regulations 2010 operate a regulated facility on land known as Bonnie Braes Farm, Bignall End, without the authorisation of an environmental permit, contrary to Regulation 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2010.

Raymond Bowden

Raymond Bowden did between the 1st March 2014 and the 30th June 2015, contravened regulation 12(1) of the Environmental Permitting (England and Wales) Regulations 2010 operate a regulated facility on land known as Bonnie Braes Farm, Bignall End, without the authorisation of an environmental permit, contrary to Regulation 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2010.

James Bowden

Between the 12th January 2015 and the 30th June 2015, Jumbo Waste & Metals Ltd contravened regulation 12 of the Environmental Permitting (England and Wales) Regulations 2010 by operating a regulated facility at Bonnie Braes Farm, Bignall End outside the terms of authorisation of an environmental permit and this offence was committed with the consent or connivance or was attributable to the neglect of James Bowden, being a director of the said company, contrary to Regulation 38(1) and Regulation 41(1) of the Environmental Permitting (England and Wales) Regulations 2010.

Stefan Paraszko

Stefan Paraszko pleaded guilty to between the 1st March 2014 and the 30th June 2015, contravened regulation 12(1) of the Environmental Permitting (England and Wales) Regulations 2010 operating a regulated facility on land known as Bonnie Braes Farm, Bignall End, without the authorisation of an environmental permit, contrary to Regulation 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2010.

TW Frizell (Haulage & Plant Hire) Ltd

TW Frizell (Haulage & Plant Hire) Ltd, between the 1st March 2014 and the 30th June 2015, deposited controlled waste on land at Bonnie Braes Farm, Bignall End when there was no environmental permit in force authorising the deposits, contrary to sections 33(1)(a) and 33(6) of the Environmental Protection Act 1990.  

Joe Frizell

Between the 1st March 2014 and the 30th June 2015, TW Frizell (Haulage & Plant Hire) Ltd deposited controlled waste on land at Bonnie Braes Farm, Bignall End when there was no environmental permit in force authorising the deposits and this offence was committed with the consent or connivance or was attributable to the neglect of Joe Frizell, being a director of the said company, contrary to sections 33(1)(a), 33(6) and 157(1) of the Environmental Protection Act 1990.

VWJ Earthmoving Ltd

VWJ Earthmoving Ltd pleaded guilty to between the 1st March 2014 and the 30th June 2015, depositing controlled waste on land at Bonnie Braes Farm, Bignall End when there was no environmental permit in force authorising the deposits, contrary to sections 33(1)(a) and 33(6) of the Environmental Protection Act 1990.  

Victoria Webb-Johnson

Victoria Webb-Johnson pleaded guilty to between the 1st March 2014 and the 30th June 2015, VWJ Earthmoving Ltd deposited controlled waste on land at Bonnie Braes Farm, Bignall End when there was no environmental permit in force authorising the deposits and this offence was committed with the consent or connivance or was attributable to the neglect of Victoria Webb-Johnson, being the director of the said company, contrary to sections 33(1)(a), 33(6) and 157(1) of the Environmental Protection Act 1990.

Chester Court Charges

Mark Oulton

Between 16 February 2018 to 22 March 2021 at Doddlespool Farm, Main Road, Betley, Crewe, CW3 9AE, Mark  Oulton did operate a regulated facility, namely a waste operation for storage of waste, except under and to the extent authorised by an environmental permit, contrary to Regulations 12 and 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2016.

Between 3 October 2017 to 22 March 2021 at Elms Farm, Betley Road, Betley, Crewe, Mark Oulton did operate a regulated facility, namely a waste operation for storage of waste, except under and to the extent authorised by an environmental permit, contrary to Regulations 12 and 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2016.

RJC Regeneration Ltd

Between 3 October 2017 to 23 March 2018 at Elms Farm, Betley Road, Betley, Crewe, RJC Regeneration Ltd did deposit waste on land without the benefit of an environmental permit contrary to Section 33(1)(a) of the Environmental Protection Act 1990.

Joe Frizell

Between 3 October 2017 to 23 March 2018 at Elms Farm, Betley Road, Betley, Crewe, RJC Regeneration Ltd did deposit waste on land without the benefit of an environmental permit and that offence was committed with the consent, connivance or was attributable to the neglect of Joe Frizell contrary to Sections 33(1)(a) and 157 of the Environmental Protection Act 1990.

If you require advice on environmental permits or waste exemptions, please contact one of the Ashbrooke team.

29 June 202429 June 2024

Engineer tragically died working near river

Openreach Limited has been fined £1.34 million in a prosecution brought by the Health and Safety Executive (HSE) after an engineer tragically died working near river whilst trying to repair a telephone line.

Alun Owen, from Bethesda, died after he slipped and fell into the River Aber in Abergwyngregyn and was swept away on 6 October 2020. The 32-year-old has been described by his family as a ‘loving and selfless character’.

An investigation by the HSE and North Wales Police, found that a number of Openreach engineers had been attempting to repair the telephone lines, which ran across the river, over a period of two months. They had been working both near and in the river. At the time of the incident, there had been flooding in the area which meant the river was much higher and faster flowing than usual.

Mr Owen entered the water and made his way to an island in the middle of the river in order to try and throw a new telephone cable across to the other side by taping it to a hammer and then throwing the hammer. Whilst attempting to cross the remaining section of the river, he slipped in a deeper part and the force of the river swept him away.

The investigation found that there was no safe system of work in place for work on or near water, nor had Mr Owen – and others working by the river – received training, information or instruction on safe working on or near water.

Openreach Limited pleaded guilty to breaching Section 2 (1) of the Health and Safety at work etc. Act 1974. The company was fined £1.34 million and ordered to pay costs of £15,858.35 at Llandudno Magistrates’ Court on 5 June 2024.

“This was a tragic incident that resulted in the death of a much loved young man. Mr Owen’s family, friends and colleagues have always remained in our thoughts. His death would have been preventable had an effective system for working on or near water been in place. Mr Owen should not have been put in the unsafe working situation. Companies should learn the lessons from this incident if they have staff who may work on or near water and be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards.”
HSE inspector Christina Roberts

Engineer tragically died working near river

North Wales Police Detective Chief Inspector Andy Gibson said:

“Our thoughts remain with Alun’s family at this difficult time. North Wales Police worked closely with HSE and whilst it was a protracted and lengthy investigation, it was critical that any failings were identified and acted upon.”

Employers are required by law to protect your employees, and others, from harm. Under the Management of Health and Safety at Work Regulations 1999, the minimum an employer must do is:

identify what could cause injury or illness in your business (hazards)
decide how likely it is that someone could be harmed and how seriously (the risk)
take action to eliminate the hazard, or if this isn’t possible, control the risk

Assessing risk is just one part of the overall process used to control risks in the workplace. For most small, low-risk businesses the steps that employers need to take are straightforward. Risk management is a step-by-step process for controlling health and safety risks caused by hazards in the workplace. An employer can undertake the risk assessment themselves or appoint a competent person to help. The five steps of a risk assessment are:

Identify hazards
Assess the risks
Control the risks
Record your findings
Review the controls

Identify Hazards

Look around your workplace and think about what may cause harm (these are called hazards). Think about:

how people work and how plant and equipment are used
what chemicals and substances are used
what safe or unsafe work practices exist
the general state of your premises

Look back at previous accident and ill health records as these can help you identify less obvious hazards. Take account of non-routine operations, such as maintenance, cleaning or changes in production cycles. Think about hazards to health, such as manual handling, use of chemicals and causes of work-related stress. For each hazard, think about how employees, contractors, visitors or members of the public might be harmed.

Some workers have particular requirements, for example young workers, migrant workers, new or expectant mothers and people with disabilities. Ensure that you involve your employees as they will usually have good ideas.

Assess the risks

Once you have identified the hazards, decide how likely it is that someone could be harmed and how serious it could be – this is assessing the level of risk. In assessing the level of risk, decide:

Who might be harmed and how
What you’re already doing to control the risks
What further action you need to take to control the risks
Who needs to carry out the action
When the action is needed by

Control the risks

Look at what you are already doing, and the controls you already have in place to ensure the safety of workers and others. Consider:

Can I get rid of the hazard altogether?
If not, how can I control the risks so that harm is unlikely?

If you need further controls, consider:

redesigning the job
replacing the materials, machinery or process
organising your work to reduce exposure to the materials, machinery or process
identifying and implementing practical measures needed to work safely
providing personal protective equipment and making sure workers wear it

Put the controls you have identified in place. It is important to remember that you are not expected to eliminate all risks but you need to do everything ‘reasonably practicable’ to protect people from harm. This means balancing the level of risk against the measures needed to control the real risk in terms of money, time or trouble.

Record your findings

If you employ 5 or more people, you must record your significant findings, including:

the hazards (things that may cause harm)
who might be harmed and how
what you are doing to control the risks

The HSE has a number of example risk assessments on its website as a guide for employers. Employers should not rely purely on paperwork, as the main priority should be to control the risks in practice.

Review the controls

You must review the controls you have put in place to make sure they are working. You should also review them if:

they may no longer be effective
there are changes in the workplace that could lead to new risks such as changes to:
staff
a process
the substances or equipment used

Also consider a review if your workers have spotted any problems or there have been any accidents or near misses. You should then update your risk assessment record with any changes you make.

If you require advice on health and safety in your workplace, please contact one of the Ashbrooke team.

18 April 20231 July 2024

Employee died loading lorry at landscape company

An employee died loading a lorry at a landscaping company which resulted in the company being fined following a prosecution brought by the Health and Safety Executive.

An East Yorkshire garden landscaping supply company has been fined £600,000 after an employee died while loading a lorry.

Brian White, 59, was working for Kelkay Limited when he was operating a forklift truck at the company’s site on Heck and Pollington Lane, Pollington, East Yorkshire, on 15 June 2018.

Brian was fatally injured when the lorry he was loading was moved by the driver, pulling the forklift truck over and trapping him underneath.

An investigation by the Health and Safety Executive (HSE) found Kelkay Limited’s risk assessment failed to take into account the possibility of lorries moving while they are being loaded. HSE also found that the systems of work provided for ensuring that vehicles were not moved during loading activities were inadequate.

Kelkay Limited, of Heck and Pollington Lane, Pollington, East Yorkshire, pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc. Act 1974. The company was fined £600,000 and ordered to pay £20,848.71 in costs at Grimsby Magistrates’ Court on 30 March 2023.

HSE inspector John Boyle commented: “This incident could have been avoided by implementing the correct control measures and safe working practices.”

“Companies should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards.”

Loading Guidance

Loading and unloading can be dangerous. Machinery can seriously hurt people. Heavy loads, moving or overturning vehicles and working at height can all lead to injuries or death.

Loading and unloading areas should be:

Clear of other traffic, pedestrians and people not involved in loading or unloading.
Clear of overhead electric cables so there is no chance touching them, or of electricity jumping to ‘earth’ through machinery, loads or people.
Level. To maintain stability, trailers should be parked on firm level ground,
Loads should be spread as evenly as possible, during both loading and unloading. Uneven loads can make the vehicle or trailer unstable.
Loads should be secured or arranged so that they do not slide around. Racking may help stability.
Safety equipment must be considered. Mechanical equipment and heavy moving loads are dangerous. Guards or skirting plates may be necessary if there is a risk of anything being caught in machinery (for example dock levellers or vehicle tail lifts). There may be other mechanical dangers and safety procedures to be considered.
Ensure the vehicle or trailer has its brakes applied and all stabilisers are used. The vehicle should be as stable as possible.
In some workplaces it may be possible to install a harness system to protect people working at height. Provide a safe place where drivers can wait if they are not involved. Drivers should not remain in their cabs if this can be avoided. No-one should be in the loading/unloading area if they are not needed.
Vehicles must never be overloaded. Overloaded vehicles can become unstable, difficult to steer or be less able to brake.
Always check the floor or deck of the loading area before loading to make sure it is safe. Look out for debris, broken boarding, etc.
Loading should allow for safe unloading.
Loads must be suitably packaged. When pallets are used, the driver needs to check that they are in good condition and loads are properly secured to them. Employers must ensure that loads are safe on the vehicle. They may need to be securely attached to make sure they cannot fall off.
Tailgates and sideboards must be closed when possible. If over-hang cannot be avoided, it must be kept to a minimum. The over-hanging part of the load must be clearly marked.
If more than one company is involved, they should agree in advance how loading and unloading will happen. For example, if visiting drivers unload their vehicles themselves, they must receive the necessary instructions, equipment and co-operation for safe unloading. Arrangements will need to be agreed in advance between the haulier and the recipient.
Some goods are difficult to secure during transport. Hauliers and recipients will need to exchange information about loads in advance so that they can agree safe unloading procedures.
Checks must be made before unloading to make sure loads have not shifted during transit and are not likely to move or fall when restraints are removed.

There must be safeguards against drivers accidentally driving away too early. This does happen and is extremely dangerous. Measures could include:

Traffic lights.

The use of vehicle or trailer restraints.
The person in charge of loading or unloading could keep hold of the vehicle keys or paperwork until it is safe for the vehicle to be moved.
These safeguards would be especially effective where there could be communication problems, for example where foreign drivers are involved.

If you require health and safety advice for your business, please contact one of our team.

1 March 20231 March 2023

Corporate Manslaughter Prosecution

A corporate manslaughter prosecution by Dorset Police has resulted in convictions for a waste management company and its director.

A waste and recycling company has been sentenced for corporate manslaughter and other health and safety offences following the death of a man at a site in Poole. A company director has also been sentenced in connection with the incident.

Detectives from Dorset Police have been working with the Health and Safety Executive (HSE) to conduct investigations into two incidents that occurred at the FDS Waste Services in Mannings Heath Road.

The first incident occurred on Thursday 13 December 2018 when an employee at the site was injured following a collision with a vehicle and very sadly died as a result of the injuries he sustained. The man was sorting recycling materials by hand in the yard when he was struck and killed by a reversing wheeled loader vehicle, which was being used to sort materials.

A further incident occurred on Monday 1 June 2020, in which an employee sustained injuries after becoming trapped in a large mechanical conveyor after he had climbed in to remove a blockage. The man sustained broken ribs and other injuries.

The joint investigation focused on allegations that the company had failed to put in place sufficient working practices to safeguard its employees, including failing to ensure employees were segregated from moving vehicles during waste sorting. It was also found that the company failed to provide its employees with adequate training, monitoring and supervision to prevent vehicle collisions in the yard.

A separate investigation by the HSE found that FDS Waste Services failed to ensure that the workforce was provided with the padlocks required for locking the power source of the machinery in the ‘off’ position and did not offer adequate training for dealing with blockages and other maintenance tasks, which required access behind the machinery guards.

Detectives from Dorset Police’s Major Crime Investigation Team (MCIT) worked jointly with the HSE to conduct detailed enquiries into the operations at the facility and liaised with a number of experts to compile evidence. Following engagement with specialists at the Crown Prosecution Service, charges were approved and the matter was brought before the court.

Following a four-week trial at Winchester Crown Court the company was found guilty of a charge of corporate manslaughter. It was also convicted for two offences of failing to discharge its duty under the Health and Safety at Work Act 1974.

At a sentencing hearing on Wednesday 22 February 2023, the company was ordered to pay fines totalling £640,000, as well as costs of £60,000. Also, the company director, Philip Pidgley, was also convicted of an offence of failing to discharge his duty under the Health and Safety at Work Act 1974. He was sentenced to six months in prison, suspended for 12 months.

“Our thoughts remain with the family and loved ones of Mr Mohamed, who sadly died as a result of the incident on Thursday 13 December 2018.

“Nothing will ever make up for their loss, but we owe it to them to ensure those who put him and other employees at risk by failing to instil safe working practices are held to account.

“We have carried out a detailed investigation in conjunction with the HSE and other experts in order to demonstrate how the company fell below the standards required of them.”
Detective Superintendent Rich Dixey, of Dorset Police

After the prosecution, HSE inspector Berenice Ray said:

“Both of these incidents, including the tragic death of Mr Mohamed, could have been avoided had well-established measures been taken to ensure workers’ health and safety.

“Those in control of work must ensure that their workplace is organised in such a way that pedestrians and vehicles can circulate in a safe manner.

“They must also ensure that the power source of relevant machinery is isolated and physically ‘locked off’ whenever the guards are removed or access within the machinery is necessary.

“Those in control of work have a duty to assess the risks; devise safe methods of working and provide the necessary information, instruction and training to their workforce.

“They must also adequately supervise work activities to check the effectiveness of the training provided and ensure safe systems of work are followed.

“There is clear, freely available guidance on how to manage these risks available on HSE’s website.”

Guidance

Employers who operate waste management sites must ensure that a suitable and sufficient risk assessment is undertaken covering the plant movement risks. When considering the risks from vehicle manoeuvring, employers must ensure that vehicles have large enough windscreens (with wipers where necessary) and external mirrors to provide an all-round field of vision. It is often worthwhile adding extra mirrors to reduce blind spots for drivers. Side mirrors can allow drivers of larger vehicles to see cyclists and pedestrians alongside their vehicles and can be effective in improving visibility around the vehicle from the driving position. These mirrors are fitted to larger road-going vehicles as standard.

Drivers should not place items in the windscreen area or in the way of mirrors or monitors, where they might impede visibility from the driving position. The area of the windscreen that is kept clear by the wipers should not be obscured, and nor should the side windows. Windows and mirrors will also normally need to be kept clean and in good repair. Dirt or cracks can make windows or mirrors less effective.

Some types of vehicles (such as straddle carriers, large shovel loaders and some large quarry vehicles) often have poor visibility from the cab. Visibility can be poor to the side or front of a vehicle as well as behind and loads on vehicles can severely limit the visibility from the driving position.

Lift trucks and compact dumper vehicles in particular can have difficulty with forward visibility when they are transporting bulky loads. Employers should recognise these risks in their risk assessment and think about ways to minimise them.

Closed-circuit television (CCTV) may help drivers to see clearly behind or around the vehicle. CCTV can cover most blind spots and the cost of fitting CCTV systems has fallen since the technology was first developed. Companies who have fitted CCTV have found that it can reduce the number of reversing accidents, so the systems usually pay for themselves in a few years.

Colour systems can provide a clearer image where there is little contrast (for example, outside on an overcast day). However, black-and-white systems normally provide a better image in lower light or darkness, and usually come with infra-red, which can be more effective than standard cameras at night.

Monitors should have adjustable contrast, brightness and resolution controls to make them useful in the different light conditions in which they will be used. Drivers may need to use a hood to shield any monitor from glare.

If possible, fit the camera for a CCTV system high up in the middle of the vehicle’s rear (one camera), or in the upper corners (two cameras). This will provide a greater field of vision and a better angle for the driver to judge distance and provide. It also keeps the camera clear of dust and spray, and out of the reach of thieves or vandals.

However, CCTV systems do have some limitations which employers should consider:

If the vehicle leaves a darker area to a more strongly lit area (for example, driving out of a building) the system may need time to adjust to the brightness.
A dirty lens will make a camera much less effective.
Drivers may find it difficult to judge heights and distances.

Drivers should not be complacent about safety even with CCTV systems installed. They should be trained in proper use of the equipment and employers have a duty to provide such training and instruction.

Reversing alarms may be drowned out by other noise or may be so common on a busy site that pedestrians do not take any notice. It can also be hard to know exactly where an alarm is coming from, and people who are less able to hear are also at greater risk. Alarms can also disturb nearby residents. However, reversing alarms may be appropriate (based on the risk assessment) but might be most effectively used with other measures, such as warning lights.

Additional advice on transport safety can be found in the HSE Guide to workplace transport safety (HSG 136, 2014) which is available free on the website. If you require health and safety advice or support for your business, please contact one of our team.

9 November 20221 July 2024

Pollution enforcement undertaking

A company which handles hazardous waste has agreed a pollution enforcement undertaking with the regulator. The company made a payment of £25,000 to an environmental charity following the contamination of groundwater at its site.

Augean South Limited of Stamford Road, Kings Cliffe, Northamptonshire also paid £11,058.90 to cover the costs of the Environment Agency investigation.

The discharge in 2020 had a short-term impact on wildlife and saw some amphibian species decline but populations recovered by the following summer. Vegetation also naturally improved after the pollution.

Routine inspections in March 2020, detected high levels of chemicals in the groundwater adjacent to the treatment centre at East Northants Resource Management Facility. The site is operated by Augean South Limited.

After performing further tests, Augean notified the Environment Agency. Officers concluded Augean had negligently exceeded its environmental permits, contrary to regulations 12(1)(b) and 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2016.

The Environment Agency accepted an Enforcement Undertaking submitted by Augean.

Enforcement undertakings are one of the civil sanctions available to the Environment Agency, enabling the wrongdoer to put right the situation and compensate for any environmental harm.

As part of this agreement, Augean donated £25,000 to the Rockingham Forest Trust, a local charity which promotes environmental projects in Northamptonshire.

It is believed that heavy rainfall during the winter and subsequent storms contributed to the chemical discharge.

The Environment Agency was satisfied Augean took appropriate action to resolve the situation. The company had acted in a timely manner to remove and clean the affected land, whilst continuing to monitor the groundwater and soil. There have been no similar incidents since at the waste facility.

Enforcement undertaking

An Enforcement Undertaking is a voluntary offer made by an offender to:

put right the effects of their offending
put right the impact on third parties
make sure the offence cannot happen again

Where the Environment Agency accepts the offer, it becomes a legally binding agreement between the Agency and the business or person who makes the offer. The regulator will only consider accepting an enforcement undertaking in cases where:

it is not in the public interest to prosecute
the offer itself addresses the cause and effect of the offending
the offer protects, restores or enhances the natural capital of England

The Environment Agency publishes details of all enforcement undertakings on its website.

pollution enforcement undertaking — Enforcement undertakings can be offered following pollution incidents (stock image)

The Agency is more likely to accept offers when they are offered early and proactively. Generally, the regulator will only consider accepting an enforcement undertaking offer when:

they are confident the terms of the enforcement undertaking will be complied with
they believe a breach of relevant legislation has occurred
they consider the enforcement undertaking to be the correct regulatory outcome taking into account (i) the nature of the offence and its impact, and (ii) other forms of enforcement available, to remedy the issues concerned, to the environment and the community
the offer is above what the company would normally need to do to comply
the offer is given in good faith
the offeror makes a positive commitment, at the right company level to stop the offending conduct or alleged breach and to maintain compliance
the offeror rectifies the consequences of the conduct, including interacting with any third party affected by the offence
the offer does not contain restrictions on how the Agency may publish its acceptance in cases involving pollution of the environment or harm to human health and it is demonstrated that any necessary remediation or restoration work commenced or will commence at the earliest opportunity.

There are a number of situations where the Agency will not accept an enforcement undertaking for example, incidents or breaches which are serious (category 1 and 2) unless low culpability or negligence at a low level. Where legal proceedings have commenced or where the offence was intentional then the Agency are unlikely to accept enforcement undertakings. For this reason, where a company is considering offering an enforcement undertaking it should be made at a very early stage and it must not include clauses denying liability or restrictions on publicity.

Once an offer has been accepted, it becomes a legally binding written agreement between the offeror and the Environment Agency. If the enforcement undertaking is not complied with then the Environment Agency can take enforcement action which can include prosecution for the original offence.

If you require environmental advice for your business, please contact one of the Ashbrooke team.

7 November 20227 November 2022

Electric shock prosecutions

Electric shock prosecutions by the Health and Safety Executive (HSE) highlight the dangers of working near overhead power cables. A construction company and two workers have been sentenced after a worker suffered an electric shock whilst working on a farm.

On 30 September 2019 an employee of Connop and Son Limited was working on Worton Grounds Farm, Deddington, Banbury, Oxon and pouring concrete when the floating arm of a mobile concrete pump came into contact with an overhead powerline.

As a result, the employee received an 11,000-volt shock which caused him to lose consciousness. His colleagues had to perform CPR to resuscitate him at the scene. The man was later taken to Oxford Hospital where he was in a coma for six days and hospitalised for 10 days.

The HSE investigation found that Connop & Son Limited fell far below the expected standard and failed to implement its own control measures documented within its risk assessment. Therefore, the company did not meet the requirements of regulation 14 of the Electricity at Work Regulations 1989.

The HSE investigation also found that Alexander Maddan, a sole trader, failed to plan, manage and monitor the construction phase and failed to ensure reasonably practicable control measures were in place. Additionally, Shaun Walker, a concrete pump operator, failed to take reasonable care for the health and safety of himself and others who were affected by his acts or omissions.

Connop and Son Limited, of Folly Farm, Eardisland, Leominster pleaded guilty to breaching regulation 14 of the Electricity at Work Regulations 1989. The company was fined £50,000 and ordered to pay costs of £5,425 plus a victim surcharge of £181 at Oxford Magistrates’ Court on 28 October 2022.

Alexander Maddan, of Deddington, Banbury, Oxon pleaded guilty to breaching regulation 13 (1) of Construction Design and Management Regulations 2015. Mr Maddan was fined £3,000 and ordered to pay costs of £525 plus a victim surcharge of £181 at Oxford Magistrates’ Court on 28 October 2022.

Shaun Walker, of Swinford Leys, Wombourne, Wolverhampton pleaded guilty to breaching section 7 of the Health and Safety at Work Act. Mr Walker was handed a 12-month community order with a requirement to carry out 60 hours of unpaid work and ordered to pay costs of £2,000 plus a victim surcharge of £90 at Oxford Magistrates’ Court on 28 October 2022.

“Connop and Son Limited, Alexander Maddan and Shaun Walker could have ensured that the mobile concrete pump lorry was positioned outside an exclusion zone to prevent contact with the overhead powerline.

“Companies should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards.”
HSE inspector Steve Hull

Electric shock safety guidance

Regulation 14 of the Electricity at Work Regulations 1989, prohibits people working on or near any live conductor (other than one suitably covered with insulating material so as to prevent danger) that danger may arise unless–

it is unreasonable in all the circumstances for it to be dead; and
it is reasonable in all the circumstances for him to be at work on or near it while it is live; and
suitable precautions (including where necessary the provision of suitable protective equipment) are taken to prevent injury.

Employers and the self-employed must take appropriate precautions to safeguard workers and others who may be impacted by their activities. Any work activity to be undertaken near electrical cables must be properly planned and risk assessed with risks eliminated or reduced as far as reasonably practicable.

Accidental contact with live overhead power lines kills people and causes many serious injuries every year. People are also harmed when a person or object gets too close to a line and a flashover occurs. Work involving high vehicles or long equipment is particularly high risk, such as;

In Construction – Lorry mounted cranes (such as Hiabs or Palingers), Mobile Elevated Work Platforms (MEWP’s), scaffold poles, tipper vehicles, cranes, ladders;

In Agriculture – combines, sprayer booms, materials handlers, tipper vehicles, ladders, irrigation pipes, polytunnels;

Those working near overhead powerlines should remember that:

going close to a live overhead line can result in a flashover that may kill. Touching a power line is not necessary for the danger to occur;
voltages lower than 230 volts can kill and injure people;
do not mistake overhead power lines on wooden poles for telephone wires; and
electricity can bypass wood, plastic or rubber, if it is damp or dirty, and cause fatal shocks. Do not rely on gloves or rubber boots to protect you.

The HSE guidance note “Avoiding danger from overhead power lines” describes how to work safely near overhead power lines in a range of industries.

Planning

Plan and manage work near electric overhead power lines so that risks from accidental contact or close proximity to the lines are adequately controlled. Safety precautions will depend on the nature of the work and will be essential even when work near the line is of short duration.

Safety can be achieved by a combination of measures including:

Planning and preparation
Eliminating the danger
Controlling the access
Controlling the work

Planning and preparation

The first step is to find out whether there is any overhead power line within or immediately next to the work area, or across any access route. Information will be available from the local electricity supplier or Distribution Network Operator (DNO). If any overhead lines are found, you should assume that they are live unless proved otherwise by their owners.

If there are any overhead lines over the work area, near the site boundaries, or over access roads to the work area, consult the owners of the lines so that the proposed plan of work can be discussed.

Allow sufficient time for lines to be diverted or made dead, or for other precautions to be taken.

Eliminating the danger

You can eliminate the danger by:

Avoidance – find out if the work really has to be carried out under or near overhead lines, and cannot be done somewhere else. Make sure materials (such as bales or spoil) are not placed near overhead lines, and temporary structures (such as polytunnels) are erected outside safe clearance distances;
Diversion – arrange for overhead lines to be diverted away from the work area; or Isolation – arrange for lines to be made dead while the work is being done.

In some cases you may need to use a suitable combination of these measures, particularly where overhead lines pass over permanent work areas. If the danger cannot be eliminated, you should manage the risk by controlling access to, and work beneath, overhead power lines.

Controlling the access

Where there is no scheduled work or requirement for access under the lines, barriers should be erected at the correct clearance distance away from the line to prevent close approach. The safe clearance distance should be ascertained from the Distribution Network Operator (DNO). HSE guidance documents Avoidance of danger from overhead electric power lines and Electricity at Work: Forestry and Arboriculture also provide advice on safe clearance distances and how barriers should be constructed. Where there is a requirement to pass beneath the lines, defined passageways should be made and clearly delineated.

The danger area should be made as small as possible by restricting the width of the passageway to the minimum needed for the safe crossing of plant. The passageway should cross the route of the overhead line at right angles if possible.

Controlling the work

If work beneath live overhead power lines cannot be avoided, barriers, goal posts and warning notices should be provided. Where field work is taking place, it may be impractical to erect barriers and goal posts around the overhead lines – these are more appropriate for use at gateways, on tracks and at access points to farmyards. The following precautions may also be needed to manage the risk:

Clearance – the safe clearance required beneath the overhead lines should be found by contacting the Distribution Network Operator (DNO);
Exclusion – vehicles, plant, machinery, equipment, or materials that could reach beyond the safe clearance distance should not be taken near the line;
Modifications – Vehicles such as cranes, excavators and tele-handlers should be modified by the addition of suitable physical restraints so that they cannot reach beyond the safe clearance distances, measures should be put in place to ensure these restraints are effective and cannot be altered or tampered with;
Maintenance – operators of high machinery should be instructed not carry out any work on top of the machinery near overhead power lines;
Supervision – access for plant and materials and the working of plant should be under the direct supervision of a suitable person appointed to ensure that safety precautions are observed.

What to do if you come into contact with an OHPL

If part of a vehicle or load is in contact with an OHPL, you should remain in the cab and inform the Distribution Network Operator (DNO) immediately (stick the number in a visible place in the cab and keep it on your mobile phone).
Warn others to stay away.
Try to drive clear. If this is not possible, and you need to leave the vehicle to escape fire, JUMP CLEAR – do not dismount by climbing down the steps.
Never try to disentangle equipment until the owner of the line has confirmed that it has been de-energised and made safe.

Contact with an overhead power line may cause the power to ‘trip out’ temporarily and it may be re-energised automatically, without warning. Your local Distribution Network Operator (DNO) can generally supply stickers describing emergency procedures and containing contact numbers that can be stuck in the cabs of vehicles likely to be used near overhead power lines.

The leaflet called Safe working near overhead power lines in agriculture and the Electricity Networks Association (ENA) publications Safety Information for Farmers and Agricultural Contractors and Watch It! In the Vicinity of Overhead Lines provide advice on what to do if machinery or equipment comes into contact with an overhead power line.

If you require health and safety advice for your business, please contact one of the Ashbrooke team.