Waste disposal — Controlled waste — Respondent company leaving plastic bags containing paper waste on roadside outside permitted hours — Respondent prosecuted — Whether leaving unattended bags on highway constituting escape — Whether justices considering correct question — Whether court remitting case to justices — Appeal dismissed
The appellant council issued summonses against the respondent company, as a producer of controlled waste, for failing to take all such measures as were reasonable to prevent the escape of controlled waste, within section 34(1)(b) of the Environmental Protection Act 1990.
The escape alleged was of controlled waste, consisting of plastic bags containing shredded paper. The respondent’s cleaning contractors deposited these bags on the highway at around 7am. However, the advertised collection time was 10.30am, so that waste should have been placed on the highway for collection no earlier than 9am.
The justices dismissed the allegations but the appellants appealed by way of case stated. They alleged that, in depositing the waste before the advertised collection time, the respondent had allowed it to escape from their control. As a result of the way in which the case was presented, the justices believed that they had to determine whether depositing controlled waste on the highway constituted an “escape” for the purposes of section 34 of the Act. However, the relevant question should have been whether the respondent had failed, in its section 34(6) duty, to take reasonable measures to prevent the waste from escaping.
The questions for the court were, inter alia, whether: (i) the justices had given the correct answer to the case as presented; and (ii) the matter should be remitted to the justices to consider the correct question.
Held: The appeal was dismissed.
(1) In view of the way in which the case had been presented to the justices, they had been bound to acquit the respondent. For the purpose of determining whether an “escape” had taken place, the depositing of waste on the highway was the same as depositing it on neighbouring land. There had been no escape within section 34(1): Gateway Professional Services (Management) Ltd v Kingston upon Hull City Council [2004] EWHC 597 (Admin); [2004] JPL 1577 applied.
(2) Section 34 imposed a duty to take reasonable measures to prevent the escape of waste. It was the failure to take such reasonable measures that constituted the offence. Escape was not a prerequisite of liability. The prosecution did not have to establish that an escape had taken place; but that the statutory duty of care had not been exercised. Although the justices had been asked to consider the wrong question, it was not in the interests of justice to remit the matter to them to consider the correct question, since they had given the correct answer to the case that had been presented to them.
Robert Lewis and Christopher Buckley (instructed by the legal department of Camden London Borough Council) appeared for the appellants; Jose Olivares-Chandler (instructed by Barrea & Co, of Slough) appeared for the respondent.
Eileen O’Grady, barrister
