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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Stone & Anor v Environment Agency  EWHC 994 (Admin) (01 May 2018)
Cite as:  EWHC 994 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Mark Stone
Salhouse Norwich Ltd
|- and -
N. Ostrowski (instructed by Miriam Tordoff, Environment Agency) for the Respondent
Hearing date: 24th April 2018
Crown Copyright ©
Mr Justice Nicol :
Extension of time for the notice of appeal
i) The first is to ask whether the breach was serious or significant. In this case, the delay was substantial. I have no doubt that the breach was serious.
ii) The second stage is to investigate why it occurred. As I have said, responsibility has been accepted by the Appellants' solicitor and he made a mistake.
iii) The third stage is to evaluate all the circumstances so as to deal with the application justly including the factors specifically mentioned in r.3.9, namely (a) the need for litigation to be conducted effectively and at proportionate cost and (b) the need to enforce compliance with rules, practice directions and orders.
i) There was no further cost to the Respondent because of the delay and the position of the Respondent is not otherwise prejudiced by the delay.
ii) The Respondent was aware of the Appellants' wish to challenge their convictions and, from at least, 1st September 2017, was aware of the Justices' willingness to state a case.
iii) If an extension is refused, that will be an end of the appeal.
iv) Had the Justices considered that there was no reasonably arguable issue for the determination of the Court, they would have refused to state a case. It can be inferred, therefore, that they considered that their decision did entail reasonably arguable points of law.
v) The obligation to comply with the Practice Direction is a factor, but it is not determinative.
Introduction to the Factual Background
'between 24th August 2015 and 8th June 2016 at land off Rice Way, Salhouse Industrial Estate, Norwich NR7 9AP, Salhouse Norwich Ltd knowingly permitted the operation of a regulated facility, namely a waste operation for the storage of waste, without being authorised by an environmental permit granted under regulation 13 of the [2010 Regulations].'
'(1) It is an offence for a person to …(b) knowingly cause or knowingly permit the contravention of regulation 12(1)(a)…'
'(1) A person must not, except under and to the extent authorised by an environmental permit (a) operate a regulated facility …'
'(b) carry on a waste operation…'
'recovery or disposal of waste'
'any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or the wider economy. Annex II sets out a non-exhaustive list of recovery operations.'
'any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I sets out a non-exhaustive list of disposal operations.'
'D15. Storage pending any of the operations numbered D1 to D14 (excluding temporary storage, pending collection, on the site where the waste is produced).'
'R13 Storage of waste pending any of the operations numbered R1 to R 12 (excluding temporary storage, pending collection, on the site where the waste is produced).'
Further Findings by the Magistrates
'9. We were satisfied to the criminal standard that the storage of the mattresses on the site between the dates charged was a waste operation within the terms of the legislation (as defined in the Environmental Permitting (England and Wales) Regulations 2010 and the Waste Framework Directive (2008/98/EC) and was not in accordance with an environmental permit or any exemption registered at the site and which presented a significant environmental health and safety risk to the local community.
10. The charges were correctly brought, when the exemption notices were removed on 24th August 2015 the waste remained on the site and a waste operation was on going.
11. The First and Second Appellants were aware of the nature of the use of the site as far back as 2013 and as a result of numerous communications with the Environment Agency thereafter. We were satisfied that the Second Appellant knowingly permitted the waste operation to continue and that the First Appellant consented and/or connived in knowingly permitting the waste operation to take place.
12. We did not share the Appellants' view that the actions of Mr Stone and Salthouse Norwich Limited between the dates charged were remedial and amounted to a 'clean-up' of the site.
13. It was accepted that 40 tonnes of an estimated 471 tonnes of mattresses were removed from the site after the enforcement notice was served on Mr Quinsey. We rejected that there was any ongoing 'clean-up' operation after hearing the evidence of Jack Coleman and Roger Thomas of the Environment Agency. We were satisfied that the waste operation continued after 24th August 2015.
14. We were also satisfied beyond reasonable doubt that the Appellants had knowingly permitted the waste operation. Mr Stone was aware of the mattress recycling business that the Third Defendant, Mr Quinsey, was operating. Mr Stone was also aware that the waste had been left on the site after the Third Defendant Mr Quinsey's business had ceased trading.
15. It is not disputed that the First Appellant was abroad at the time when the enforcement notice was served on the Third Defendant Mr Quinsey. However, on the Appellants' own admission there was communication between the Environment Agency and the First Appellant via e-mail at this time. We were satisfied after hearing the evidence of Jack Coleman and Roger Thomas that whist communication was taking place between the Environment Agency and the First and Second Appellants there was no meaningful engagement by the Appellants in attempting to facilitate the clean-up of the site.
16. It was accepted that no explanation was provided on behalf of the Environment Agency as to why the Appellants were not prosecuted for failing to adhere to the Enforcement Notice requiring the waste to be removed from the site as occurred with the Third Defendant Mr Quinsey. Why the Environment Agency did not pursue this course of action was not a matter for our consideration. We needed to be satisfied that we were sure the charges preferred were made out on the evidence that we heard.
17. We carefully considered the evidence in light of the matters as charged and gave particular scrutiny to the wording of the charges. We accept that the Environment Agency did not prosecute the Appellants for failing to adhere to the Environment Notice (as the Appellants contend they should have). However, there was no application for a stay of proceedings in order for an abuse of process argument to be considered in the conduct of these proceedings.
18. We found the evidence of the prosecution witnesses credible and compelling. We acceded to the Appellants' trial counsel and made no adverse inference from the First Appellant's failure to give evidence at the trial. We acknowledged the good character of the First Appellant.'
'Were the Magistrates entitled to find that there was a continuing 'waste operation' as defined in the 2010 Regulations and Waste Framework Directive (2008/98/EC) consisting of the storage or waste between the dates charged?'
'Were the Magistrates entitled to find that the offence of "knowingly permitting" the operation of a regulated facility did not require the prosecution to establish that the accused took a positive act within the period covered by the charges, but simply knew such a waste operation (as defined) was taking place?'
Should the Magistrates be asked to amend their Case?
Question 1: Were the Magistrates entitled to find that there was a continuing 'waste operation' between the dates charged?
i) After Mr Quinsey's activity stopped on 24th August 2015 there was no 'operation' on the site at all.
ii) Category D15 of Annex I and Category R13 of Annex II were not apt to describe what happened thereafter. The mattresses were not then awaiting disposal or recovery. Mr Strelitz said they just had to have their location changed by being moved off site as required by the Respondent.
iii) The Appellants wished, as he put it, to expel the mattresses from the site. There was no deliberate act of storage. In common parlance 'storage' connoted some positive act of retention. Here there was no more than passive sufferance of the mattresses remaining on the site.
iv) After 24th August 2015 the only work done on the site was done by Mr Quinsey and that was under compulsion from the Respondent.
v) There would be no lacuna in the Respondent's powers if this interpretation was adopted. The Environmental Protection Act 1990 ('EPA 1990') s.59 allows the Environment Agency to issue an enforcement notice to an occupier and, it is a summary offence for the occupier to fail to comply with the notice without reasonable excuse (see s.59(5)). However, there are two critical differences. First, the occupier may challenge the enforcement notice by appealing to a magistrates' court (see s.59(2)) and the notice is suspended until the determination of the appeal (see s.59(4)). Secondly, the penalty is no more than a fine (s.59(5)). These provisions are directed at the occupier of land, but essentially the same regime applies in relation to the owners of land - see EPA 1990 s.59ZA (added with effect from 6th April 2006 in England by Clean Neighbourhoods and Environment Act 2005 s.50(2)).
vi) The interpretation adopted by the Magistrates had effectively imposed strict liability on land owners whose commercial tenants ceased trading and abandoned waste on their site.
i) The 2010 Regulations were intended to implement the WFD and should, as far as possible be interpreted consistently with that directive. Recital 30 of the Preamble to the WFD 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. 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 (C0418/97) at . The interpretation adopted by the Magistrates was also consistent with those principles.
ii) D15 and R13 showed that storage pending disposal or recovery was a 'waste operation'.
iii) There was no authority for the Appellants' argument that storage required some positive act of retention. The Magistrates were entitled to find that, even after 24th August 2015 what was happening was that the mattresses continued to be stored at the site.
iv) There was no meaningful distinction between storage pending disposal or recovery on the one hand and passive sufferance pending the 'expulsion' of the mattresses as the Appellants contended.
v) It had also to be remembered that the charge against the Appellants was that they '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.
vi) It did not help the Appellants to point to other powers available to the Respondent. If the Respondent was right in its contention that the facts of the present case constituted an offence under regulation 38, it was entitled to prosecute for that offence and, if the evidence justified that conclusion, the Magistrates were right to convict. It was immaterial that the Respondent might have taken a different course instead. As it happens, the Respondent was entitled to view a prosecution under regulation 38 as a more effective course because of the wider range of sentencing powers.
Question 2: Were the Magistrates entitled to find that the offence of 'knowingly permitting' the operation of a regulated facility did not require the prosecution to establish that the accused took a positive act within the period covered by the charges, but simply knew such a waste operation (as defined) was taking place?
i) After 24th August 2015 the Appellants permitted no operation of a regulated facility. Instead they sought to engage with the Respondent as to how the site could be cleared at proportionate expense.
ii) If the Respondent thought that the Appellants were not doing enough, they could have issued an enforcement notice spelling out what further steps in their view should be taken. Had they done this, the Appellants would have had an opportunity to challenge the required steps in an appeal to a magistrates' court pursuant to EPA 1990 s.59ZA(5) ands.59(2).
iii) The Appellants permitted nothing. They had been left with mattresses on their site.
i) Regulation 38 provides that there is an offence if a person 'knowingly cause[s]' the contravention of regulation 12(1)(a) or if he 'knowingly permit[s]' such a contravention. The juxtaposition between causing (or knowingly causing) and knowingly permitting an offence has been well known in Environmental law for many years. Alphacell Ltd. v Woodward  AC 824 had concerned an appellant charged with 'causing' pollution, but the House of Lords had also commented on what was involved by 'knowingly permitting'. Thus at p.834 Lord Wilberforce had said,'knowingly permitting which involves a failure to prevent the pollution, which failure must, however, be accompanied by knowledge.'Lord Salmon at p.849 said,'The creation of an offence in relation to permitting pollution was probably included in the section so as to deal with the type of case in which a man knows that contaminated effluent is escaping over his land into a river and does nothing at all to prevent it.'In that case the Lords were concerned with an offence under Rivers (Prevention of Pollution) Act 1951 s.2(1) of which provided,'Subject to this Act, a person commits an offence punishable under this section (a) if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter.'Under that legislation, therefore, the 'causing' version of the offence was not qualified by the word 'knowingly'. Regulation 38 in that sense is different, but I do not regard that as material in relation to their Lordships' comments made on the 'knowingly permits' alternative.
ii) Walker and Son (Hauliers) Ltd v Environment Agency  EWCA Crim 100 was an appeal against conviction of an offence of knowingly permitting the contravention of regulation 12 under regulation 38 of the 2010 Regulations. The trial judge had been HHJ Lea who, as can be seen from  of the Court of Appeal's judgment, had directed the jury to consider three matters:'(1) Did the Company have knowledge of waste operations on their land?(2) If so, did the Company permit i.e. allow or fail to prevent, those waste operations?(3) Were the waste operations, of which the Company had knowledge, in accordance with an environmental permit?'The central argument before the Court was whether the judge had erred in not also directing the jury to consider whether the defendant had known that the operation was not in accordance an environmental permit. The Court rejected that argument and found at  that the Judge had been correct in his interpretation of regulation 38 and the appeal against conviction was dismissed.
iii) Accordingly, Mr Ostrowski submits, the 'knowingly permitting' alternative does not require that the accused took a positive act.
Answer: The magistrates were right to find that the offence of 'knowingly permitting' the operation of a regulated facility did not require the prosecution to establish that the accused took a positive act within the period covered by the charges. It was sufficient for the prosecution to prove that the accused knew such a waste operation (as defined) was taking place and did nothing to prevent it. The Magistrates were entitled to find that was the case.