The respondent operated a landfill site under the terms of a permit issued pursuant to the Pollution Prevention and Control Regulations 2000. A condition attached to the permit provided that odours were not to be emitted from the landfill installation at levels that were likely to cause pollution of the environment or harm to human health or serious detriment to the amenity of the locality beyond the permitted installation boundary, “as perceived by an authorised officer of the agency.” The appellant sought to prosecute the respondent for failure to comply with that condition. However, the district judge dismissed the charges on the ground that the condition was invalid because it was ambiguous and because it had usurped the fact-finding role of the court by making the question of breach dependent upon the subjective opinion of the appellant’s “authorised officer”.
The appellant appealed by way of case stated. It contended that the condition did not oblige the court to accept the authorised officer’s view, subject only to questions of honesty, but merely provided for the officer to decide if there was a prima facie case of breach; the matter remained for the court to determine and it was entitled to reject the officer’s evidence.
Held: The appeal was allowed.
The condition was not ultra vires. It did not require the court to convict on the opinion of the authorised officer, but simply meant that evidence from an authorised officer was necessary before the appellant could take the respondent to court for breach. It remained for the court to decide whether a breach had occurred on all the evidence before it. On that basis, the condition did not offend against the principle of clarity or interfere with the court’s fact-finding function: Procurator Fiscal v Seed Crushers (Scotland) Ltd [1998] Env LR 586 and R (on the application of United Kingdom Renderers Association Ltd) v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 749; [2002] JPL 1524 considered.
Mark Harris (instructed by the legal department of the Environment Agency) appeared for the appellant; Ian Croxford QC and Thomas de la Mare (instructed by Fairweather Whillis & Toghill, of High Wycombe) appeared for the respondent.
Sally Dobson, barrister
