Environment – Waste – Environmental permit – Appellant director of company operating exempt waste storage facility – Appellant appealing against conviction for contravention of environmental regulations – Whether exemption invalid and continued operation without permit unlawful – Whether statutory requirement for exempt facility satisfied – Appeal dismissed
The appellant was the director of a company which operated a facility for the storage and treatment of waste wood at Dover’s Corner Industrial Estate in Rainham, Essex. Under regulation 8 of the Environmental Permitting (England and Wales) Regulations 2010, the company had to be either a “regulated facility”, which required an environmental permit, or an “exempt facility”. No environmental permit was ever granted or applied for and the company registered its operation as an exempt facility.
An “exempt facility” was defined in regulation 5(1)(a) as “an exempt waste operation”, which met the requirements of para 3(1) of schedule 2: the waste operation had to be registered; and the type and quantity of waste, and the method of its disposal or recovery, had to be consistent with the objectives of article 13 of Directive 2008/98/EC (the Waste Framework Directive). The exemption allowed for storage and treatment of up to 500 tonnes of waste wood over a seven-day period.
Officers from the defendant agency discovered that the company was storing waste in excess of the allowance and advised it to reduce the amount of waste stored on the site. When the company failed to comply, its exempt status was removed and the company was notified that the continued storage of waste wood at the site was an offence under regulation 38(1)(a) of the 2010 Regulations.
The appellant was subsequently convicted of an offence of contravening regulations 38(1)(a) and 12(1)(a) of the 2010 Regulations. The appellant appealed contending that the trial judge had erred in directing the jury that, if it was sure that the stored waste had exceeded 500 tonnes or the type of waste and method of disposal was inconsistent with the Waste Framework Directive because it endangered human health or harmed the environment, the exemption was invalid and the company’s continued operation without a permit was unlawful; consistent with the principle of legal certainty, an exemption did not cease to be effective until it was removed from the public register.
Held: The appeal was dismissed.
(1) The proposition, that an “exempt facility” did not cease to be exempt until deregistration, was mistaken. In the present case, to make good the charge in the indictment, the defendant had to prove that, in the relevant period, the company was operating a “regulated facility” rather than an “exempt facility”. If at any time during that period, the operation was not an exempt facility, the company committed the alleged offence.
On a straightforward interpretation of the legislative provisions, a waste operation would only be an exempt facility if it fully met the requirements of para 3(1) of schedule 2 to the 2010 Regulations. If it did not meet those requirements in full, it could not be an exempt facility and it had to be a regulated facility; if, as a regulated facility, it was operated without an environmental permit, there was a breach of regulation 12, and an offence under regulation 38 had been committed.
The “requirements” for an operation to be an “exempt waste operation”, and thus an “exempt facility”, were clearly set out in para 3(1) of schedule 2: (i) the operation satisfied “the general and specific conditions” specified in part 1 of schedule 3 for the relevant description of the operation; (ii) it was registered; and (iii) the type and quantity of waste, and method of disposal or recovery, were consistent with the relevant objectives of the Waste Framework Directive. Those three requirements were mandatory and cumulative. If any of them was not met, or ceased to be met, the operation could not be an “exempt waste operation”, and thus could not be an exempt facility but only be a regulated facility.
(2) The fact that an entry for the facility remained the register did not, on its own, signify that it remained an exempt facility even though the operation was, in fact, in default on either of the other two requirements. Registration did not, of itself, confer continued status as an exempt facility, nor did it bestow immunity from the consequences of its ceasing to be an exempt facility. It did not afford protection from prosecution, unless the other requirements of the exemption were complied with. Crucially, regulation 5 defined and determined whether a facility was exempt or not. The duty in para 8(1)(b) to remove an entry from the register could not itself arise unless the facility had already ceased to be an “exempt facility”. It was not the act of removal from the register itself that caused the facility to cease to be an exempt facility. The operation ceased to be an exempt facility before, not after, the duty to deregister arose. Regulation 5 alone determined whether at any given time the operation was or was not an exempt facility.
(3) The concept of legal certainty was enshrined in the express requirements that had to be met if an operation was to be an exempt waste operation, and thus an exempt facility. Whether an operation was an exempt facility depended on the operator having registered the exemption and operating within its constraints. It was a matter of fact whether those requirements were satisfied at any given time. If they were not met, then for the duration of their not being met the operation had ceased to be an exempt facility. The position here was similar to that of the holder of an environmental permit for a “regulated facility”, the conditions of which stated the maximum volume of material to be stored or processed on the site. Alleged breaches of such conditions might be intermittent, or fluctuating; and they might be contentious. If proved, they did not deprive the operator of his status as the holder of an environmental permit, or the operation of its status as a regulated facility. But liability to prosecution, as in the case of an offence under reg 38(1), would depend on the particular facts.
(4) In the present case, the prosecution was well founded. It was not vitiated by any misconception or misapplication of the legislative provisions. The jury were properly directed on the law relating to the offence.
Andrew Thomas QC and Samantha Riggs (instructed by Clyde & Co) appeared for the appellant; Austin Stoton (instructed by the Environment Agency) appeared for the respondent.
Eileen O’Grady, barrister
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