Environment – Controlled waste – Appellant depositing waste without licence – Respondent issuing notice requiring removal of waste – Appellant seeking amendment of notice to permit treatment of waste on site – Whether crown court correctly refusing to modify notice – Appeal allowed
The appellant company was engaged to remove contaminated soil from a development site. The soil constituted controlled waste within section 33 of the Environmental Protection Act 1990. The appellant deposited the waste on its land despite not having a waste-management licence, contrary to section 33(1)(a) of the 1990 Act, and both it and the developer subsequently pleaded guilty to offences under that provision.
The respondent agency, as the waste-regulation authority, served a notice on the appellant, under section 59(1)(a) of the 1990 Act requiring it to remove the waste. The appellant appealed and sought to have the notice amended so as to allow it to take specified steps to treat the soil on the land in order to eliminate or reduce the consequences of the deposited waste.
The crown court took the view that allowing the appellant to treat the soil without a licence would be condoning an offence under section 33(1)(b), which prohibited the treatment of controlled waste without a licence being in force. Accordingly, the court refused to modify the notice in line with the policy of ensuring a proper licensing system for waste management.
The appellant appealed by way of case stated. The respondent conceded that no offence would be committed under section 33(1) were the treatment of the soil to be carried out in compliance with a notice under section 59(1). Therefore, the court could not rule out the possibility that the treatment of the soil as controlled waste on the land could be a specified step in a section 59 notice merely because it would normally be an offence under section 33(1). However, the respondent contended that the crown court had, in effect, found that it would be inappropriate to permit the appellant in this case to treat the waste on its land since it would thereby be able to circumvent the waste-management licensing system by carrying out the treatment on an unlicensed site for profit.
Held: The appeal was allowed.
There was an obvious legal flaw in the approach taken by the crown court, which had been strongly influenced by the consideration that to allow the modification of the section 59(1) notice would be to condone a criminal offence.
Section 33(1) had to be read subject to section 59(1), in that actions taken in compliance with a section 59(1) notice would not amount to a criminal offence under section 33(1). A notice under section 59(1) could require either the removal of the waste or the taking of specified steps short of removal, which would necessarily involve keeping the waste on the land. A notice under section 59(1) might require “treatment” of the waste, which term had a wide meaning under the 1990 Act.
Matters of punishment and deterrence, such as preventing an appellant from obtaining a commercial benefit from its evasion of the waste-management system, were not appropriate factors to be taken into account under section 59(1).
The correct approach was to consider the most appropriate remedial steps in the context of protecting human health and the environment. There was no presumption that it would be preferable to remove the waste rather than to treat it on site. Courts should reflect in any financial penalty the amount of any commercial advantage obtained by the unlawful deposit of waste.
Stephen Hockman QC (instructed by Dolmans, of Cardiff) appeared for the appellant; Mark Harris and Andrew Arentsen (instructed by the legal department of the Environment Agency for Wales) appeared for the respondent.
Eileen O’Grady, barrister