Land – Waste operation – Environmental permit — Appellant company awarding contract to B to demolish empty buildings on its site – Local residents complaining about waste operation activities on site without environmental permit – Appellant being prosecuted for knowingly permitting activities without relevant permit – Appellant pleading guilty following judge’s ruling that not necessary for defendant to know waste operation not having environmental permit – Appellant appealing – Whether judge erring in law – Whether simple knowledge of activities sufficient for liability under regulation 38 of Environmental Permitting (England and Wales) Regulations 2007 – Appeal dismissed
The appellant company purchased land in Worksop for redevelopment and awarded B a contract for the demolition of empty buildings on the site. Following complaints from local residents about fires on the site, the local authority investigated and discovered that activities were taking place which should have been the subject of an environmental permit, including burning. The site was being used by B as an illegal waste transfer station and for the burning of waste. Neither the appellant nor its employees had been involved in those activities. The company, by its director, gave an interview under caution and explained that he had driven around the site from time to time and had see fires and crushing machines which were consistent with the burning of wood from demolition works and the crushing of concrete as part of the contracted works.
The company was subsequently charged by the respondent with, among other things, the offence of knowingly permitting the operation of a regulated facility without an environmental permit contrary to regulation 38 of the Environmental Permitting (England and Wales) Regulations 2007 (SI 2007/3538). The issue before the judge focussed on the meaning of the words “knowingly permit” in regulation 38(1)(a) of the 2007 Regulations. The judge ruled that a jury would need to consider: (i) whether the appellant had knowledge of waste operations occurring on their land; (ii) if so, whether it had permitted, namely allowed or failed to prevent, those waste operations; and (iii) whether the waste operations of which the appellant had knowledge had been in accordance with an environmental permit. Following that ruling, the appellant pleaded guilty in writing, reserving the possibility that it might seek permission to appeal.
The appellant subsequently appealed against conviction. The prosecution case was that all that was needed to prove the offence under regulation 38 was that a defendant had knowingly permitted a particular waste operation, and that as a matter of fact that operation was not in accordance with an environmental permit. The appellant argued that the prosecution had to prove, first, that a defendant knowingly permitted the particular waste operation; and secondly, that it knew that the operation was not in accordance with an environmental permit.
Held: The appeal was dismissed.
The words “knowingly” and “permit” related to knowledge of the facts and not as to the existence and scope of the permission or conditions of a licence. The prosecution did not have to show that a defendant knew that the matters of which it was aware were not permitted. There were means of checking the existence and conditions of environmental permits, and ignorance of those matters should not be a defence to an environmental offence: Ashcroft v Cambro Waste Products Ltd [1981] 1 WLR 1349, Westminster City Council v Croyalgrange Ltd [1986] 1 WLR 674 and Shanks & McEwan (Teesside) Ltd v Environment Agency [1999] QB 333 considered.
On the facts of the present case, the appellant’s director had known of some burning at the site, albeit nothing of the substantial importation of wastes by others. The law required that he ensured that what was happening was compliant with the conditions of an environmental permit. It would be no defence to say that he had been told lies. There was no longer a defence based on the exercise of due diligence to avoid the commission of the offence under regulation 38(1) of the Regulations. If the appellant’s construction were correct, it would in effect introduce a due diligence defence by the back door and constitute a significantly more favourable approach to environmental breaches than the 2007 Regulations envisaged. Therefore, the judge had been correct in his conclusion as to the proper interpretation of regulation 38(1).
Richard Kimblin (instructed by DAC Beachcroft LLP) appeared for the appellant; Stephen Hockman QC and Chris Badger (instructed by the Environment Agency) appeared for the respondent.
Eileen O’Grady, barrister
