Magnohard Limited And Others V. The United Kingdom Atomic Energy Authority+the Scottish Environment Protection Agency
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Date | 15 August 2003 |
| Docket Number | P777/02 |
| Court | Court of Session |
| Published date | 11 July 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| P777/02
| OPINION OF LADY PATON in the Petition of MAGNOHARD LIMITED and OTHERS Petitioners; against (FIRST) THE UNITED KINGDOM ATOMIC ENERGY AUTHORITY and (SECOND) THE SCOTTISH ENVIRONMENT PROTECTION AGENCY Respondents: ________________ |
Petitioners: Martin, Q.C., J. Mure, Advocate; Burness W.S.
First respondents: Tyre, Q.C., D. Fairley; Morton Fraser W.S.
Second respondents: Moynihan, Q.C., Tods Murray
15 August 2003
Radioactive particles found on land near atomic energy power station at Dounreay
[1]The petitioners own property situated near the United Kingdom Atomic Energy Authority (UKAEA) power station at Dounreay in the north of Scotland. The first petitioners are a limited company, owned by the Minter family. The company owns Sandside Estate, including Sandside Beach lying adjacent to the power station, together with fishing rights extending 22.2 kilometres out to sea. The second and third petitioners are a married couple, Geoffrey and Michelle Minter. They own and occupy Sandside House, situated near the beach. The fourth petitioner is the mother of the second petitioner. She owns and occupies Fresgoe House, situated at one end of the beach.
[2]In this petition for judicial review, the petitioners aver that particles of nuclear matter have been found on Sandside Beach, the source of the particles being the atomic energy power station at Dounreay. The particles are thought to come from a sea-based cache, with the result that they are moved and deposited by wind and tide.
[3]The petitioners complain that their land has been materially damaged by the deposit of the particles. In paragraph 16 of the petition, at page 39C-E, they aver that:
"The heritable property of the first petitioners has been materially damaged by the deposit of the particles thereon ... The [second, third and fourth] petitioners' respective properties have been damaged by the release of radioactive particles from the site, and their deposit on parts of Sandside estate. The sand on the beach and on other parts of Sandside estate has become intermingled and admixed with radioactive particles from the site. The contamination of the petitioners' land by the said radioactive substances has rendered their property less useful and less valuable. The [Food Protection (Emergency Prohibitions)(Dounreay Nuclear Establishment) Order 1997 S.I.1997 number 2622] has reduced the commercial return on the estate."
[4]The second, third, and fourth petitioners further complain that they have suffered injury. In paragraph 16 of the petition, at page 39D-E, they aver:
"The second, third and fourth petitioners have suffered stress and anxiety caused by the deposit of the particles on Sandside estate, by the continuing uncertainty surrounding the origin, nature and extent of nuclear contamination on Sandside estate, and by the lack of information about the contamination and risks posed thereby."
In paragraph 17 of the petition, they aver:
"(d) The respondents' failures have caused the petitioners to suffer anxiety and stress. The presence of nuclear matter on the beach, and the likelihood of similar nuclear matter being present on other parts of Sandside estate, has caused the petitioners to alter their pattern of land use, and to avoid parts of the estate which they previously used to enjoy. For example, the petitioners no longer walk on the beach with their dogs, as they used to do."
[5]As a result of the damage and injury complained of, the petitioners seek inter alia a declarator that the UKAEA are in breach of section 7 of the Nuclear Installations Act 1965, in terms of which the UKAEA have a duty to secure that no occurrence involving nuclear matter causes injury to any person or damage to any property arising out of the radioactive properties of that nuclear matter.
[6]The petitioners also criticise the current monitoring and particle-removal programme conducted by contractors employed by the UKAEA acting in compliance with conditions imposed by the Scottish Environment Protection Agency (SEPA). The petitioners contend that the programme is inadequate, and that it detects fewer than one per cent of radioactive particles deposited on the beach. The petitioners criticise the frequency of monitoring, the areas monitored, the depths investigated, the level of radioactivity specified for detection purposes, and the equipment used. The petitioners seek to have the UKAEA ordained to implement an alternative monitoring and particle-removal programme specified in Schedule A to the petition. The substituted programme would, according to the petitioners, change a mere sampling or reassurance exercise to a proper and effective attempt to restore the beach to a clean, pristine condition.
[7]The petition was intimated to SEPA, as an interested party. SEPA entered appearance and lodged answers. They were represented at the first hearing.
Orders sought at first hearing
[8]At the first hearing on 11-14 and 18-19 February 2003, counsel for the petitioners accepted that certain matters required further adjustment and specification. They also accepted that some disputed matters of fact might require evidence. Nevertheless counsel submitted that, on the basis of the facts averred and admitted in the pleadings, and the productions referred to, the following orders should be granted:
- Declarator that the UKAEA have failed, and are continuing to fail, to perform their statutory duty under section 7 of the Nuclear Installations Act 1965. (Paragraph 6(iii) of the petition).
- An interim order ordaining the UKAEA to implement the monitoring and clean-up programme specified in Schedule A to the petition, or the current monitoring regime for Sandside Bay at more frequent intervals, or any other programme ordered by the court. (Paragraph 6(ii) of the petition as amended during the first hearing).
[9]Paragraph 6(iv) of the petition seeks declarator that the UKAEA have, since at least 2 October 2000, failed to act in compliance with Article 8 of the European Convention on Human Rights, and with Article 1 of the First Protocol of the convention. Ultimately senior counsel for the petitioners advised that no order founded upon human rights was sought meantime.
[10]The petitioners reserve their right to seek other remedies in future, for example declarator or implement based upon human rights legislation; damages from the licensee; or compensation from the government. The petitioners requested that, following any decision by the court, the case be put out at a continued first hearing, to discuss further procedure.
Choice of judicial review
[11]Counsel for the petitioners explained that, as an order for specific performance of a statutory duty was sought, the petitioners had proceeded by way of judicial review in terms of section 45(b) of the Court of Session Act 1988 and rule 58.3 of the Rules of the Court of Session.
[12]Section 45(b) provides:
"The court may, on application by summary petition -
(b) order the specific performance of any statutory duty, under such conditions and penalties (including fine and imprisonment, where consistent with the enactment concerned) in the event of the order not being implemented, as to the court seem proper."
[13]Rule 58.3 provides:
"(1) Subject to paragraph (2), an application to the supervisory jurisdiction of the court, including an application under section 45(b) of the Act of 1988 (specific performance of a statutory duty), shall be made by petition for judicial review.
(2) An application may not be made under paragraph (1) if that application is made, or could be made, by appeal or review under or by virtue of any enactment."
Background relating to atomic energy power station at Dounreay
[14]In 1954, the Atomic Energy Authority Act 1954 brought the UKAEA into existence.
[15]In 1955, the UKAEA opened a nuclear energy research facility at Dounreay. The facility comprised a power plant with three nuclear reactors and three fuel reprocessing plants. The reprocessing of fuel irradiated in the reactors commenced in 1958 and ceased in the 1990s. Accordingly the nuclear reactors and reprocessing plants are no longer in operation.
[16]In the 1960s and 1970s, underwater milling and cropping processes took place at the power station site. On occasions the milling head cut into the uranium-aluminium fuel element, producing radioactive swarf. The UKAEA deposited the swarf in a 65-metre-deep shaft within the site.
[17]In 1983, the UKAEA used high pressure water to clear a build-up of sand from the old diffuser situated at the discharge end of the offshore pipeline for the discharge of liquid radioactive waste. During that year and subsequent years, radioactive particles were found on the foreshore at Dounreay, a foreshore which was not open to the public.
[18]In 1984, a radioactive particle was found on Sandside Beach - a beach open to the public. The UKAEA began some monitoring of the beach and other nearby beaches. Thirteen years later, in 1997, two further radioactive particles were found on Sandside Beach. As a result, the UKAEA began monitoring the beach every month. In 1999, five particles were found on the beach; in 2000, six particles; in 2001, three particles; and in 2002, five particles.
[19]As at the date of the first hearing in February 2003, a total of twenty-two particles had been found on Sandside Beach. It was not disputed that the particles were "nuclear matter" within the Nuclear Installations Act 1965, or that they had emanated from the power station site. The 65-metre shaft and the old diffuser were thought to be possible sources, but the precise source(s) and route(s) of the particles were unknown. Whatever the original source or route, it was considered most likely that a sea-based cache had been established, resulting in the sporadic deposit of particles by wind and tide.
[20]Although the petitioners aver at page 29E-F that sand from Sandside Beach had been used...
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