Environment – Waste operation – Enforcement notice – Appellants convicted of offence of knowingly permitting regulated waste operation for waste storage without environmental permit – Appellants appealing – Whether magistrates entitled to find continuing “waste operation” – Whether magistrates entitled to find prosecution required merely to establish appellants knew waste operation taking place – Appeal dismissed
The second appellant company owned a site at land off Rice Way, Salhouse Industrial Estate, Norwich, on which a third party operated a waste business, recycling mattresses, under a lease. The first appellant was its director. The respondent agency served an enforcement notice on the third party and he ceased trading but approximately 471 tonnes (over 20,000 mattresses) of waste material remained on the site. The respondent alleged that the appellants had knowingly permitted a waste operation to continue at the site in the form of storage pending removal or disposal. The appellants argued that the recycling business had been that of the third party and events after his departure had to be viewed as a clean-up operation. In any event, even if it had been a “waste operation”, they had not knowingly permitted it, as the first appellant had been out of the country when the enforcement notice was served.
The magistrates convicted the appellants of offences contrary to regulations 12(1)(a) and 38(1)(b) and, in the case of the first appellant, regulation 41(1)(a) and (b) of the Environment Permitting (England and Wales) Regulations 2010. They held that the storage of the mattresses constituted a “waste operation” as defined with regulations 7 and 2. The offence was knowingly permitting the operation of a regulated facility, namely a waste operation for waste storage, without an environmental permit. The first appellant was further convicted on the basis that the second appellant had acted with his consent or connivance, or its actions were attributable to his neglect as a director.
The appellants appealed by way of case stated. The third party defendant did not appeal. The questions for the court were whether the magistrates were entitled to find: (i) that there was a continuing “waste operation” as defined in the 2010 Regulations and Directive 2008/98/EC (Waste Framework Directive); and (ii) that the offence of “knowingly permitting” the operation of a regulated facility merely required the prosecution to establish that the appellants simply knew that a waste operation was taking place.
Held: The appeal was dismissed.
(1) The 2010 Regulations were intended to implement the Waste Framework Directive and should, as far as possible, be interpreted consistently with that directive. Recital 30 of the Preamble to the Directive noted that it was intended to implement the precautionary principle and the principle of preventative action enshrined in article 174(2) of the Treaty for the European Union TFEU). Likewise those principles had informed the interpretation of the word “waste” by the Court of Justice of the EU in Arco Chemie Nederland Ltd v Minister van Volkshuisvesting Ruimtelijke Ordening en Milieubeheer (C-418/97) [2002] QB 646. The interpretation adopted by the magistrates was also consistent with those principles. Category D15 of Annex I and Category R13 of Annex II to the Directive showed that storage pending disposal or recovery was a “waste operation”. There was no authority for the appellants’ argument that storage required some positive act of retention. The magistrates had been entitled to find that, even after service of the enforcement notice, the mattresses continued to be stored at the site. There was no meaningful distinction between storage pending disposal or recovery and passive sufferance pending the expulsion of the mattresses. The charge was that the appellants had “knowingly permitted” a waste operation. Thus, it was not alleged that they themselves were storing the mattresses but that they knowingly permitted that waste operation.
(2) Regulation 38 of the 2010 Regulations provided that there was an offence if a person knowingly caused the contravention of regulation 12(1)(a) or knowingly permitted such a contravention. The “knowingly permitting” alternative did not require that the accused had taken a positive act. The magistrates were right that the prosecution did not have to prove that the prosecution took a positive act within the period covered by the charges. That was the essential issue posed in their second question which concluded “but [the prosecution must prove that the defendant] simply knew such a waste operation (as defined) was taking place”. That way of phrasing it did not quite capture the “knowingly permitting” alternative. If that alternative was charged it had to be proved that at least the defendant failed to prevent the waste operation from occurring. However, that qualification did not assist the appellants. Their contention was not that they had taken steps to prevent storage of the mattresses, but that they were initially unaware of the enforcement notice and had then co-operated with the respondent in what was, in effect, a clean-up operation. The magistrates found that the waste operation had continued after service of the enforcement notice, and that the appellants had knowingly permitted it. The first appellant had known that the waste had been left on the site after the third party had ceased trading and the magistrates rejected the appellants’ characterisation of what had taken place as a clean-up operation. The magistrates were entitled to find that that was the case: Alphacell Ltd v Woodward [1972] AC 824 and Walker and Son (Hauliers) Ltd v Environment Agency [2014] EWCA Crim 100 followed.
Paul Strelitz (instructed by Seddons) appeared for the appellants; Nicholas Ostrowski (instructed by the Environment Agency) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read transcript: Stone and another v Environment Agency
