Business premises – Environment – Waste – Third party contractor renovating property and disposing of waste on behalf of appellant company – Contractor transferring waste to fly tipper in absence of appellant’s representative at property – Appellant convicted of environmental protection offences – Whether appellant taking all reasonable measures to ensure compliance with statutory duty – Whether appellant controlling waste at relevant time – Appeal dismissed
The appellant company was the freehold owner of a commercial property which it had acquired in 2009 to be renovated and sold. The appellant engaged a third party contractor to carry out the renovation works. The appellant entered into a verbal agreement with the contractor for the works and the removal of any rubbish from the property but no specific instructions were given in respect of waste management. However, the appellant had seen invoices relating to the hire of skips to remove waste and had previously engaged the same contractor without incident.
On 18 August 2010, the appellant was convicted, as a producer of waste, of two offences under the “duty of care” provisions of section 34(1)(c) and 34(6) of the Environmental Protection Act 1990 following the actions of the independent contractor who, on two successive days in December 2009, disposed of waste to a “fly tipper” in contravention of section 33 of the 1990 Act. The respondents were the prosecuting authority.
The appellant appealed by way of case stated, contending that, since no representative of the claimant had been present at the property on the date of the offences, it could not have been guilty of offences under section 34(1)(c) since there were no reasonable steps it could have taken when it had no knowledge of the relevant transfers.
The questions for the opinion of the High Court included: (i) whether the magistrates had construed section 34(1)(c) correctly by taking into account the appellant’s conduct prior to the two dates on which the relevant controlled waste had been transferred by the contractor to an unauthorised person, rather than looking solely at the circumstances and their capacity on the transfer dates alone; and (ii) whether, on the evidence, the magistrates could properly have been satisfied to the criminal standard of proof that the appellant had failed to discharge its duty on each occasion as set out in the charges, thereby committing offences contrary to section 34(1)(c).
Held: The appeal was dismissed.
(1) The appellant was a producer of waste because of its activities of renovating property which was producing the waste, albeit being carried out on the particular premises on its behalf by its contractor. While the waste was on its own premises being generated by its own activities, the appellant was in as much control of the waste for the purposes of determining its capacity in relation to the waste and determining what measures it could reasonably be expected to take to comply with the duty of care under section 34(1)(c), as was the contractor. Both in law and fact it had control of the waste.
As far as the issue of reasonableness was concerned, the appellant must have foreseen that during the currency of the works that had been contracted out, controlled waste would be both produced and need to be taken off site by a transfer to a third party. What was important concerning foresight was not that the contractor might use a fly tipper but that there would be transfers of controlled waste from the premises during the currency of the works. The appellant had chosen to distance itself from the site and not to preserve a permanent presence on the site and not to play any direct role in the transfer of the waste or to require any advance notice of any transfer from the site.
In those circumstances, if the appellant was to comply with its statutory duty of care on the occasion of any such transfer, it was inevitable that it was going to have to put in place measures in anticipation of any such transfers, to take effect on the day of the transfer, designed to secure the achievement of the statutory objectives on the occasion of any transfer. Whether such measures as it might have put in place were reasonable in the circumstances to secure the statutory objectives, whether by way of proper instruction to the contractor, requirement of appropriate receipts, audit trails, internal procedures or otherwise, was a question of fact for the magistrates to determine but they were entitled, and in the circumstances bound, to have regard to the actions taken or not taken by the appellant company prior to the transfers.
(2) On the evidence before the magistrates the appellant had in fact put in place no measures at all designed to comply with its duty of care under section 34(1)(c) upon the occasion of any transfer of waste, to secure the statutory objectives. The appellant had relied simply upon an assumption that any such measures as contemplated by section 34(1)(c) were unnecessary because the contractor had already carried out a larger job of renovation on its behalf without violation of the statutory scheme and because it had seen evidence of skips being hired out to the contractor by a registered waste carrier both in relation to the previous site and the current one. In those circumstances, it was inevitable that the magistrates had rejected the submission of no case to answer at the close of the prosecution case. Moreover, their conclusion at the close of all the evidence that they were satisfied to the criminal standard of proof, that the appellant had failed to discharge the duty of care which lay upon it under section 34(1)(c) on the transfer of the waste, on each of the two material dates, was unimpeachable. They patently had regard to the matters relied upon by the appellant as regards its past experience of the contractor but they were fully entitled to form the view that the assumption relied upon by the appellant as to the reliability of the contractor in relation to the lawful disposal of waste, was insufficient to discharge that duty.
David Sonn (instructed by Sonn MacMillan Walker) appeared for the appellant; The respondents did not appear and were not represented.
Eileen O’Grady, barrister
