Waste disposal — Controlled waste — Respondents depositing waste — Appellant bringing unsuccessful prosecution — Whether deposits within exemptions to prohibition on unlicensed waste deposits — Construction of exemption — Burden of proof — Section 33 of Environmental Protection Act 1990 — Paragraph 19 of Schedule 3 to Waste Management Licensing Regulations 1994 — Appeal allowed
The first respondent, a company of which the second respondent was the managing director, owned land upon which it planned to develop recreational facilities. The company was also engaged in various waste-related activities, including the hiring out of skips for household and business purposes and the disposal of their contents, screening waste materials for its block-making plant, and the production of wood chippings. The appellant was the regulatory agency for such activities.
Section 33(1) of the Environmental Protection Act 1990, read with section 33(6), made it an offence to deposit controlled waste, defined as “household, industrial and commercial waste”, unless a waste management licence was in force. Certain activities were exempted from that prohibition by regulation 17 of the Waste Management Licensing Regulations 1994, and were listed in Schedule 3 to those regulations. Paragraph 19 of Schedule 3 exempted the storage of certain types of waste if “suitable for the purposes of relevant work which will be carried on at the site”.
Before commencing their activities on the site, the respondents conducted discussions with the appellant, following which they received a letter from the appellant that drew their attention to the regulations. The letter stated that the appellant would permit the respondents’ activities, as falling within the Schedule 3 exemptions, only if 95% or more of the wastes deposited on the site were used in the manufacture of aggregates for use in the respondents’ block-making activities and for construction of the recreational facilities, and if biodegradable waste, which was unsuitable for those purposes, were not accepted.
The appellant subsequently brought criminal charges against the respondents for depositing controlled waste without a waste management licence. Each charge alleged a specific deposit on a particular date. The magistrates took the view that the amount of waste that was subject to the charges was a tiny fraction compared to the average amount of inert material deposited each month. They concluded that that fraction was within the 5% tolerance suggested by the appellant’s letter, and they acquitted the respondents.
On an appeal by the appellant, issues arose as to: (i) the meaning and extent of the exemption provisions; and (ii) where, on the facts of the case, the burden of proof lay.
Held: The appeal was allowed.
1. Since each of the charges against the respondents had been in connection with a specific deposit, taking place on a particular date and at a particular time, the conduct that should have been, but was not, scrutinised in the criminal proceedings was the making of each and every deposit. The magistrates had erred in taking a global approach and treating the exemption as applying so long as 95% of the total amount of waste deposited was free of biodegradable material, instead of paying precise attention to the contents of each and every skip that was subject to a charge. Moreover, the magistrates had erred in treating the appellant’s letter as an aid to construction of the regulations and in allowing a 5% tolerance level. The appellant had no power to alter the terms of the exemption created by the regulations, which governed each individual deposit and provided for no latitude or tolerance. However, the letter was not entirely irrelevant, as it could have been relied upon in mitigation of sentence, or might have enabled an application to be made to stay the prosecution on the grounds that it was an abuse of process.
2. The effect of section 33 of the 1990 Act was that a deposit of controlled waste, falling within the exemption, was not prohibited. Accordingly, if the prosecution alleged that there had been a prohibited deposit, it was for the prosecution to prove the facts that took the deposit outside the exemption and rendered it a prohibited deposit. Accordingly, the appellant had to prove that the deposit contained waste that was not suitable for the exempted purpose, and it was not for the respondents to show, on the balance of probabilities, that the deposits related to the carrying on of an exempted activity.
Charles Morgan (instructed by the solicitor to the Environment Agency) appeared for the appellant; Alec Burns (instructed by Swinburne Maddison, of Durham) appeared for the respondents.
Sally Dobson, barrister
