Local Government FM Network FM Seminar “Environment and Sustainability”

1. “An Environmental Lawyer’s Perspective” Local Government FM NetworkFM Seminar“Environment and Sustainability” Luke Bennett, Senior Solicitor, Nabarro Nathanson

2. Overview of presentation • Sustainability and LAs • Sustainability – legal issues for FM managers • Key developments in environmental law

3. 1. Sustainability and LAs

4. Sustainability “development which meets the needs of the present without compromising the ability of future generations to meet their own needs” …but do your budgets work to the medium / long term perspective ?

5. LAs – political commitment to sustainability

6. LAs and Sustainability • Local Agenda 21 initiatives • Best Value targets, including: • BV82a – household waste management (recycling, landfilling, composting, energy recovery) • BV199a – local street and environmental cleanliness (litter, graffitti, fly-tipping, abandoned vehicle) • Environmental initiatives and vires – are there limits to how green LAs can be?

7. Local Government Act 2000 Section 2 - Promotion of well-being (1)   Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects— (a)the promotion or improvement of the economic well-being of their area; (b)the promotion or improvement of the social well-being of their area, and (c)the promotion or improvement of the environmental well-being of their area.

8. LAs and environmental procurement • Public Contracts Regs 2006, Reg 30(2): • “A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period and period of completion”. • LAs can incorporate environmental criteria • But there has to be an evident benefit / relationship to the service being procured

9. Being held to account • Public access to environmental information: • Aarhus Convention – public participation in environmental decision making and access to environmental information • Freedom of Information Act 2000 • Environmental Information Regs 2004 • Statistical reporting – case study: Castle Morpeth BC and waste management

10. Case study - Castle Morpeth • CMBC’s Head of Environmental Services was dismissed following a mis-reporting of recycling rates. He was successfully prosecuted in 2003 for making false environmental statements but a string of false accounting charges were dropped. • The saga costs CBMC an estimated £250,000 and saw its claimed recycling rate fall from 36% to 16% • The mis-reporting resulted in a greater level of recycling credits being claimed from the County Council than CMBC was actually eligible for – these had to be refunded to the County Council

11. Duties Procure waste collection and disposal Reduce biological municipal waste / increase recycling Promote household energy efficiency Contaminated land / Regeneration Tackle environmental street crime Environmental Health Traffic management Impacts Traffic Construction Waste generation Energy usage Resource consumption Policies and decisions shape the local environment Buildings and FM LA impacts and environmental duties

12. LA’s environmental impacts • LA as: • Regulator • Procurer of goods and services • Exemplar • Impactor • This talk focuses on LAs impact as owners / operators of premises / services

13. Sustainability and the built environment • The life of buildings • Premises as long-term systems • Life cycle approach • Construction (Design & Management) Regulations 1994 • Locality impacts • Environmental Impact Assessment for major infrastructure and urban regeneration projects • Nuisance (e.g. light pollution)

14. 2. Sustainability - legal issues for FM managers

15. Themes • Contractual vs regulatory • Key developments in environmental law • Relationship to health & safety

16. Theme 1 – can liability be fully transferred?

17. Sources of liability • Breaches of regulatory law • (e.g. fly-tipping) • Common law • (e.g. nuisance; trespass) • Environmental taxation • (e.g. landfill tax) • Contractual risk allocation • (e.g. FM contract)

18. Sustainable FM • The goals: • Sustainable operability • Cost certainty • Liability transfer • FM contractor as universal repository of risk?

19. Contractual allocation of responsibility • A typical FM contract clause: “the Services Contractor shall observe, perform and comply with all the provisions of the Project Agreement and the other Project Documents to be observed, performed and complied with on the part of the Provider in so far as they relate to the provision of the Services and so as, in particular, to maintain Availability of the Facilities and achieve and maintain the Performance Standards”

20. Regulatory vs Contractual Liability • Does liability follow contracts? • Client’s residual duty to achieve compliance • Case studies : • Legionnella • Eurocare (waste outsourcing)

21. Case studies - legionnella

22. Relying on compliance by others – the Ceri Davies case (1999) • Mr Davies was the MD of a company that suffered a fatal Legionnaires Disease outbreak • Water management contractors were retained BUT • The Court held Mr Davies liable alongside his Company for its failure to adequately monitor, resource and ensure that those contracted out arrangements achieved adequate control of the risk • Directors and Senior Offices can be held liable for the actions of their companies where those actions are attributable to their consent, neglect or connivance (S37 HASAWA)

23. Gillian Beckingham – the Barrow Legionnaires Outbreak (2002) • Forum 28 - Council Leisure centre, seven fatalities • Ms Beckingham’s role and responsibilities as contracts manager: • Cancelled an air conditioning maintenance contract and failed to ensure in the replacement contract that the cooling tower water would be treated • Manslaughter (gross negligence) charges – jury failed to reach verdict • Convicted of S7 HSAWA failures (NB: Council pleaded guilty to S3 HSAWA charge) • Facing a retrial (and appealing the Section 7 conviction)

24. Gillian Beckingham – the implications “It is one of the many liabilities that almost all of us has that we’re barely aware of when we take up a post…this is similar to the sudden realisation by teachers of their liability for taking children on school trips” [Terry Wyatt, president of CIBSE (2004)]

25. Case study – outsourcing waste management

26. Waste - The Duty of Care (1) “We offer our customers peace of mind, providing a one-stop solution for healthcare waste management issues … From cradle to grave we maintain your duty of care” [Eurocare Website]

27. Waste - The Duty of Care (2) “ … it shall be the duty of any person who … produces, carries, keeps or treats or disposes of controlled waste … to take all such measures applicable in that capacity as are reasonable in the circumstances …” [Section 34 Environmental Protection Act 1990]

28. Eurocare – what happened • Rapid growth as clinical waste service provider • 2003 – fined £100,000 for a string of waste and pollution offences for failing to cope with the volume of clinical waste it received • Lack of effective contingency arrangements threatened potential collapse of the NHS consortium’s clinical waste disposal system • It is believed that the EA considered prosecuting the NHS trusts for duty of care breaches

29. Case studies Learning lessons: • Realistic delegation of responsibility • Adequate resourcing • Active contract management • Contingency arrangements

30. Theme 2 – recent regulatory developments

31. Environmental Law & Sustainability (old) Pollution(narrow) (new) Sustainability (wide)

32. Energy costs Air quality Hazardous substances Waste Clean Neighbourhoods Transportation Contamination Water Legislative framework and pressures

33. Energy • Climate Change / Global Warming • Energy Efficiency - increasing • Revision of Part L Building Regs • EU Energy Performance of Buildings Directive (in force in UK from Jan 2009) • Energy Rating of new build and refurbished properties – and won’t be able to sell-on without one • Energy costs - increasing • Climate change levy (since 2001) • EU Emissions Trading Scheme (since Jan 2005)

34. Air Quality • Emissions to the outside world • IPPC / EU Waste Incineration Directive • (e.g. cremators and 50% reduction of mercury emissions by 2012) • Local Air Quality Management Plans • Indoor environments • sick building syndrome • toxic mould (a “hot topic” in the US)

35. Waste • There’s a lot of legislative activity: • Disposing of your office equipment - WEEE and RoHS; ELVs • Hazardous Waste Regulations 2005 • Animal By-products Regs 2005 (re: catering wastes) • Increased enforcement powers and fines under the Clean Neighbourhoods & Environment Act 2005

36. Hazardous Substances • The cleaners’ cupboard • Radioactive sources • PCBs and electrical equipment • CFCs & Halons phase out • Asbestos : the duty to manage…

37. Asbestos: the duty to manage • Reg 4 Control of Asbestos at Work Regs 2002 • Who is the duty holder? • Applies since 21 May 2004 • What must be achieved?: • Assess premises • Manage risk • Co-operate and collaborate • Ongoing duty

38. Contamination • What? • Who faces liability? • Likelihood of liability • Pace of investigation / enforcement

39. Water • Strict liability for pollution • Drainage and washings • Boiler blow down • Communal drainage systems • Oil storage

40. Liability: how the Courts react • Strict liability: guilty pleas at Magistrates Courts • Pressure to make punishments hurt • Ability to prosecute Directors and Senior Officers • Emotive areas ? (e.g. radioactivity) • Civil liability in the “Human Rights era”

41. Theme 3 – the link with safety

42. Safety & Security • Machinery safety standards for specific plant (e.g. Lifts Regulations 1997) • Fire safety order – into force October 2006 (replaces Fire Certification regime with risk assessment approach) • Risk assessment culture • Emergency planning

43. Safety & sustainability – a closing case study

44. Climate change and landscaping • “Climate change over the next 80 years will present gardeners with challenges and opportunities. Some plant species will thrive in the changing conditions and others will be more difficult to grow”. [The Royal Horticultural Society]

45. The perils of palm trees Planning Policy Statement (PPS) 9: Biodiversity and Geological Conservation (ODPM, 2005), page 2: The Government’s Objectives: “…to contribute to rural renewal and urban renaissance by: – enhancing biodiversity in green spaces and among developments so that they are used by wildlife and valued by people, recognising that healthy functional ecosystems can contribute to a better quality of life and to people’s sense of well-being; and – ensuring that developments take account of the role and value of biodiversity in supporting economic diversification and contributing to a high quality environment.”

46. The perils of palm trees • "Having palm trees is a little bit like keeping tigers - they are beautiful but you wouldn't want them wandering the streets. The truth is, health and safety regulations mean we have to be mindful that they could be dangerous.“ - Colin Charlwood, a Liberal Democrat councillor

47. The perils of palm trees • "The palms need to be carefully and appropriately used. They can cause maintenance problems and as they have very sharp leaves, need to be carefully used in the streetscapes, where they could cause injury to eyes/faces if inappropriately placed.“ -Paul Osborne, senior urban design and landscape officer

48. The perils of palm trees • Torbay's mayor, Nick Bye, was unimpressed, saying: "I cannot see palm trees as a serious health and safety risk unless you are in the Caribbean and a great big coconut falls on your head."

49. Resilience – the new sustainability ? • LA’s now have a statutory duty to ensure that they will be able to cope with emergencies, also: “[LA’s] shall provide advice and assistance to the public in connection with the making of arrangements for the continuance of commercial activities by the public, or the continuance of the activities of bodies other than public or local authorities whose activities are not carried on for profit, in the event of an emergency” (Section 4,Civil Contingencies Act 2004)

50. Conclusions • Sustainability is not a core legal requirement – but by a variety of routes it is increasingly reflected in what law requires of FM operators • Beware the limits of “outsourcing” compliance liability • Environment and safety issues are closely related • Environmental law and policy is constantly evolving